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Lockyer Says S.F. Exceeded Its Legal Rights

March 26, 2004|Maura Dolan | Times Staff Writer

SAN FRANCISCO — Atty. Gen. Bill Lockyer told the California Supreme Court on Thursday that San Francisco exceeded its legal authority when it issued more than 4,000 marriage licenses to same-sex couples.

In written arguments filed with the state high court, Lockyer said the state Constitution requires local authorities to obey state laws unless a court has found them unconstitutional.

"This proceeding is not about the constitutionality of same-sex marriage," Lockyer said. "It is not a litmus test on marriage or societal values. This case is about the proper role of public officials in carrying out their governmental duties."

On March 11, the California Supreme Court ordered San Francisco to stop issuing marriage licenses to same-sex couples, and announced it would review whether the city had violated state law by marrying gays. The court declined to decide on the constitutionality of the state's marriage laws until lower courts had reviewed them.

Lawyers for San Francisco have asked the court to rescind its order and permit more gay couples to marry. The city also wants the court to refrain from ruling in the case until the constitutionality of the state's marriage laws is resolved in the lower courts. In a brief submitted to the court last week, city officials also argued that the courts long had "recognized the right, and indeed the duty, of public officials, both at the state and local levels," to follow the Constitution, even if that means "declining to enforce a statute."

Lockyer, in his brief, responded that, because no state or federal court has yet found California's marriage laws to be unconstitutional, the city has a duty to comply with them. He added that San Francisco had claimed for itself "broad and unprecedented powers to unilaterally take action."

Observing that most states had not recognized gay marriage, Lockyer said, "It is at best hyperbole" for the city "to maintain that the state's marriage laws are clearly unconstitutional. State law controls every aspect of marriage, leaving nothing to the discretion of local government."

The Alliance Defense Fund, a group opposed to gay marriage, joined the state in filing arguments Thursday against San Francisco. The fund, which represents traditional religious values, told the court that "there would be no uniform system of law" if mayors could choose to disobey laws they considered unconstitutional.

"A mayor that believes the 2nd Amendment prohibits state restrictions on carrying concealed weapons could issue gun permits to all applicants, regardless of qualifications," the group wrote. "In short, our uniform system of law would be reduced to a patchwork of disparate rights and obligations based upon the beliefs of local officials."

The state high court is expected to rule in the case before the end of summer.

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