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Delay Sought in Ruling on S.F. Mayor

City asks state high court not to consider whether Newsom broke law in allowing gay marriages.

March 19, 2004|Maura Dolan | Times Staff Writer

SAN FRANCISCO — City officials here asked the California Supreme Court on Thursday to refrain from deciding whether Mayor Gavin Newsom broke the law by issuing same-sex marriage licenses until the constitutionality of the state's marriage laws is resolved.

In written arguments filed with the court, Chief Deputy City Atty. Therese M. Stewart said anti-discrimination provisions in both the state and federal constitutions compelled Newsom to permit same-sex marriage in the city.

Before the court can stop city officials from acting on constitutional principle, "it must first conclude that the acts it is forcing them to engage in are, indeed, constitutional," the city's brief said.

Last week, the California Supreme Court ordered the city to stop marrying gays and announced it would consider only whether San Francisco violated state law by issuing the gender-neutral marriage licenses. The state high court left it to lower courts to review the constitutionality of the marriage laws.

San Francisco, several gay couples and two gay-rights groups immediately filed lawsuits challenging marriage laws, but those lawsuits may not be resolved for a year or more.

The brief filed Thursday represented the city's first official attempt at persuading the court to change its mind about the case. The city asked the court to lift its temporary order preventing city officials from continuing to marry gay couples. San Francisco had issued more than 4,000 licenses to gay couples before the court intervened on March 11.

"The marriages harmed no one, and conferred countless benefits on same-sex couples long denied equal treatment," Stewart wrote.

When the court stopped gay marriages here, it announced that it would focus on arguments that Newsom's action violated a state constitutional provision prohibiting administrative agencies from refusing to obey a state law on constitutional grounds unless the law was found unconstitutional.

The city responded that the provision applied only to state agencies, not to local government. The city also observed that the constitutional requirement, added by voters in 1978, followed decades in which courts had permitted public officials to ignore laws they deemed unconstitutional.

"For more than a century, this court has recognized the right, and indeed the duty, of public officials both at the state and local levels to conform their actions to constitutional norms, even when doing so means declining to enforce a statute," Stewart wrote.

She said courts had imposed liability on public officials for obeying an unconstitutional law, even before a court declared it so.

The city also objected to a reference in the Supreme Court's order last week that said the mayor could not refuse to obey a state law because of a "personal view." Newsom was acting on constitutional principle, not a whim, the city said.

Newsom decided to permit gay marriages after reviewing decisions by the three state high courts that have considered the issue, the brief said. Each of those courts -- in Hawaii, Vermont and Massachusetts -- found that depriving same-sex couples of the benefits of marriage violated their state constitutions.

The mayor also was influenced by President Bush's call for a constitutional amendment to ban gay marriage, the city said.

"The efforts by those who would now change the Constitution are a powerful admission of their recognition that the Constitution, as it currently stands, prohibits the discrimination society has visited on lesbians and gay men for so many decades," Stewart wrote.

The state high court is expected to hold a hearing in late May or June and issue a ruling by the end of summer.

In other action Thursday, a Superior Court judge here refused to permit a religious group that opposes gay marriage from immediately intervening in the city's constitutional challenge of the state's marriage laws. The group, the Alliance Defense Fund, said it may be permitted to intervene at a later date.

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