California Court Poses Tough Questions on Gay Marriage
By REUTERS from the NYTimes on the Web, May 25, 2004
SAN FRANCISCO -- California Supreme Court justices on Tuesday subjected lawyers for San Francisco to skeptical questions on why the city thought it had the right to wed 4,000 gay couples earlier this year -- weddings that helped focus national attention on same-sex marriages.
The judges also wondered aloud if they should annul the marriages as lawyers for California and the liberal city presented oral arguments over whether Mayor Gavin Newsom defied state law by issuing licenses sanctioning gay weddings starting in February.
A statewide, voter-backed law defines marriage as a union of man and woman.
Following a request by California's attorney general, the California Supreme Court halted the city's actions in March, but Newsom's move opened a national debate that has reached into presidential politics.
"The court seemed very concerned about the mayor's actions and seemed to almost feel as though they were placed in a very difficult position," Kate Kendell, National Center for Lesbian Rights, said after attending the two-hour-long arguments.
In tough questioning, the justices asked chief deputy San Francisco attorney Therese Stewart why Mayor Newsom abruptly acted to issue the licenses without seeking court authority.
"Why couldn't have this gone through the courts?" Justice Joyce Kennard asked in a proceeding that was broadcast live, which is a rare exception to court rules.
"What was the emergency, what was the irreparable harm?"
"Why not simply do the route of seeking a judicial decision as other litigants have been forced to do?," Kennard asked.
Stewart, speaking rapidly, argued city officials acted properly in enforcing the state's marriage laws. "Sometimes the executive in carrying out their function must act," she said.
DID MAYOR SET BAD PRECEDENT?
Justice Ming Chin wondered whether a mayor could also disregard a law in the future that allows gay marriages.
Other judges asked whether officials could ignore gun control regulations if they were convinced the measure violated Second Amendment rights to bear arms.
Several of the court's seven justices, who are not ruling on the constitutionality of gay marriage but on San Francisco's action, repeatedly returned to the question of what to do about those gays already wed.
"Those unions never had any legal effect whatsoever," argued Timothy Muscat on behalf of California's attorney general.
"They simply have never existed."
Several justices acknowledged that future court decisions could one day rule gay marriage valid, which appeared to complicate a decision on the fate of the 4,000 couples.
City attorney Stewart said that even if the court rules against Newsom, they should not cancel the marriages because future circumstances such as death or illness could prevent some from remarrying.
"The fact that it won't be the same doesn't change the law," Chief Justice Ronald George said.
At one point Justice Marvin Baxter expressed frustration that San Francisco had created the issue of what to do about the more than 4,000 gay couples in the first place.
"Of course it's the city that created this mess," he said. "I still have not heard why the city did not get a judicial determination as to the validity of the marriages."
The politically charged landscape of gay marriage has shifted rapidly even since the pioneering San Francisco weddings.
Last week, Massachusetts became the first U.S. state to allow same-sex marriage, and court battles on the issue lie ahead in New Jersey, New York and Washington.
"We put a face to discrimination and regardless of what the courts do, regardless of what the politicians try to do, I think we've advanced this debate in very significant ways," Mayor Newsom told reporters in Sacramento on Tuesday.
Many experts say years will likely pass before the U.S. Supreme Court rules conclusively on the issue, but it has already become an issue in this year's presidential campaign.
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