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S.F. Wedding Planners Are Pursuing a Legal Strategy

February 22, 2004|Maura Dolan and Lee Romney | Times Staff Writers

SAN FRANCISCO — The strategy was methodical. For more than a dozen years, lawyers for gay and lesbian causes had carefully selected their battlefields, identifying key states for constitutional challenges aimed at broadening their rights.

California was not to be one of them -- at least not any time soon -- and marriage was not supposed to be the central legal issue, at least not yet.

But over the last two weeks, San Francisco Mayor Gavin Newsom dramatically accelerated the legal strategy.

Gay marriage had been debated in the abstract, allowing opponents to depict it as dangerous, he argued. What the legal strategy needed was real couples to place before the courts. The plan should be to marry first and then fight the legal battle.

More than 3,000 same-sex marriages later, that decision has opened the door to what could be a crucial legal test.

"In a way it feels like the dam broke," said Jon W. Davidson, senior counsel at Lambda Legal, the nation's largest lesbian and gay legal advocacy group.

San Francisco's actions were deliberately planned with the courts in mind, according to lawyers who were involved in the discussions.

Five couples -- whose stories would present the gay rights argument in the most sympathetic manner -- would be chosen as test cases. Leading national gay rights lawyers would be recruited to assist the city. The first marriages would be performed on a day when courts were closed, to ensure that opponents would not be able to block the move before the weddings were solemnized.

To win, gay rights advocates must still persuade the California Supreme Court to invalidate the state's family law, which limits marriage to "a man and a woman." That remains a high hurdle, legal experts believe.

On Friday, Gov. Arnold Schwarzenegger delivered a stern letter to state Atty. Gen. Bill Lockyer, directing him to take "immediate action" to stop same-sex marriages in San Francisco. Hallye Jordan, Lockyer's spokeswoman, said the attorney general planned to seek a judgment in the court case.

Largely, the gay-marriage proponents' legal strategy has been carried out without a hitch. Foes have gone to court four times in the last nine days seeking to block San Francisco's actions. Each time they have lost, and the long line of couples seeking to wed has continued to move forward.

Photos of young male married couples with babies strapped to their chests and elderly women who have been together for 50 years will help diminish any threat the public may feel regarding marriages between gay people, advocates hope.

"I think the parade of couples on TV and in the newspapers and magazines is what is going to change the public attitude about marriage of same-sex couples," Davidson said. "That is what it is going to take. Before, this was an abstract issue."

The planning began over the weekend before the first gay marriages took place, as Newsom plotted strategy with top aides, several of whom are gay.

On Feb. 9, city officials called lawyers for the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights. Those groups are now defending the city's actions, along with San Francisco's chief deputy city attorney, Therese M. Stewart, a lesbian who has long been active in equal-rights causes.

Starting some days with 6 a.m. conference calls, the lawyers worked round the clock to ready their plans.

On Thursday, Feb. 12, a day the courts were closed for the commemoration of President Lincoln's birthday, four of the five test couples were quietly ushered into City Hall to marry. Then, Newsom threw open the doors to the public.

Opponents of gay marriage have tried to keep the legal debate to a simple argument: State law does not allow same-sex weddings, and San Francisco has no right to bypass that law. They want an immediate court order blocking more marriages, but judges have put off a hearing on the issue until March 29.

"Here is my frustration," said Benjamin W. Bull, chief counsel of the Alliance Defense Fund, which defends traditional religious rights. "Clearly the city's strategy is to have tens of thousands of these same-gender licenses issued so, by the time a court rules on this, it may be more of a nightmare to revoke the licenses than it will be to validate them.... Wittingly or unwittingly, the Superior Court is playing into the city's hands."

Bull said his side planned to take depositions of psychologists, sociologists and family counselors "saying that children are better off in opposite-sex relationships."

Gay rights advocates hope to get judges to focus on a different issue -- whether laws, including Proposition 22, forbidding same-sex marriages violate the California Constitution's ban on discrimination. Each of the five test couples was chosen to illuminate a different aspect of that argument.

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