Gay marriage in California on hold; high court to rule

By Maura Dolan and Lee Romney
Los Angeles Times

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In a second blow to proponents of same-sex marriage, the Massachusetts Legislature moved closer to adopting a constitutional amendment that would ban such ceremonies and establish civil unions for gay and lesbian couples.

San Francisco officials immediately complied with the California court's order, directing the clerk not to issue same-sex marriage licenses as of 2:33 p.m. yesterday. The ruling from California's highest court came four weeks after Mayor Gavin Newsom ordered his staff to issue same-sex licenses, arguing that to do otherwise would violate the equal-protection clause of the state's constitution.

Although the court's action leaves existing licenses in place — at least for now — it was a setback for Newsom and his allies. The justices said they would only consider the fairly narrow question of whether San Francisco officials had the authority to deem a state law unconstitutional. Unless the city wins that argument, which most legal experts consider daunting, marriage licenses that have been issued likely would be void.

San Francisco officials had wanted to argue the broader issue of whether the state's family laws, which define marriage as between "a man and a woman," violate the state constitution's ban on discrimination. The court said the city could pursue that argument in the lower courts, a process that could take two years.

City officials acted quickly on that suggestion, filing a lawsuit challenging the constitutionality of the family-code statutes.

Since Feb. 12, when the same-sex marriages began, 4,161 couples have received licenses in festive, often-tearful ceremonies. In limbo are 2,688 more couples who had booked appointments to wed under the city's ornate rotunda through the end of May.

In its orders yesterday, the high court told San Francisco to obey state marriage laws, "without regard to respondent's personal view of the constitutionality of such provisions," until the court makes a final ruling, probably this summer.

Newsom apologized "to the couples who waited and were denied their constitutional rights today. That is wrong," he said. But he also expressed optimism that the city would prevail.

"I am pleased that the process is working as well as it is," he said. "As you know, we have asked for a day in the court, and that day is approaching."

Opponents of gay marriage and state Attorney General Bill Lockyer, who had asked the court to prevent the city from issuing more same-sex marriage licenses, claimed victory.
 
"We're celebrating here and thankful that the court has enforced the rule of law," said Benjamin Bull, chief counsel of the Arizona-based Alliance Defense Fund, which filed one of the requests for a stay with the state Supreme Court. "It's necessarily implied in today's ruling that whatever (the city has) done in violation of state law is fatally defective. I don't see how you can see it any other way."

Lockyer said he was "gratified" the court "granted our request to quickly resolve this issue" by focusing on whether San Francisco city and county officials have the authority to recognize same-sex marriages.

Newsom's move had unleashed a chain reaction, with public officials in New Mexico, New York and Oregon following his lead. Six gay and lesbian couples sued King County on Monday after being denied marriage licenses, and Seattle Mayor Greg Nickels issued an executive order saying City Hall will recognize same-sex marriages performed elsewhere.

The New Mexico attorney general immediately quashed a clerk's actions there, and a Superior Court judge in New York ordered New Paltz Mayor Jason West to stop solemnizing marriages in that town. A hearing on Portland's actions is scheduled for today.

Even President Bush entered the fray, announcing his support for an amendment to the U.S. Constitution banning gay marriage.

"Proponents of same-sex marriage have had a clear field for a couple of weeks," Bull said. "Now the legal system is catching up with the renegades and imposing the rule of law."

Gov. Arnold Schwarzenegger applauded the court's action, saying in a statement, "I believe very strongly that the people should obey the laws that we have here in California."

Schwarzenegger, interviewed earlier in the day by Fox News, had repeated his position that he would have no problem with same-sex marriage if voters approved it.

Gay and lesbian couples reacted with disappointment and anger. Molly McKay, Northern California executive director of Marriage Equality California, quickly organized an evening march to the steps of the court and City Hall to protest. McKay married her partner last month and said many friends had hoped to follow suit.

"We will prevail," she said. "It's just a matter of when. This is a civil-rights issue, and I believe in our country's ability to right its past wrongs."

But legal analysts said the court's action indicates the justices believe San Francisco has been violating state law and probably will rule against the city.

"I would say the handwriting is on the wall," University of Santa Clara University law professor Gerald Uelmen said.

While the courts will decide the fate of same-sex marriage in California, voters will hold the key in Massachusetts.

Before the bipartisan, compromise measure approved yesterday can be finalized by the Legislature, it must withstand a series of votes and, potentially, a crush of modifications.

Even in its final form, the amendment — which would eliminate marriage privileges granted to gay and lesbian couples by the state's highest court — is at least two years away from appearing as a ballot initiative.

Under the Supreme Judicial Court ruling that made Massachusetts the first state to legalize same-sex marriage, couples will be eligible to marry starting May 17. The latest attempt by lawmakers to circumvent that decision makes no provision for what will happen to gay and lesbian couples who marry during what could turn out to be a finite window of legality.

Reconvening yesterday in a joint-session known as a constitutional convention, the House and Senate voted 129-69 in favor of the measure.

The vote helped the Legislature inch beyond the deadlock that closed a similar constitutional convention last month. During the four-week recess, lawmakers worked to gain support for an amendment defining marriage as a union between a man and a woman but also guaranteeing civil-union status to same-sex couples.

Rep. Philip Travis, a Democrat, pushed unsuccessfully in the last convention for an amendment that would ban same-sex marriage without establishing civil unions.

"How does one reconcile voting for marriage as a union between a man and a woman and in the same paragraph say that two people of the same sex shall have the right to form a civil union?" he asked.

Looking grim, he predicted: "Confusion reigns when this goes on the ballot."

Los Angeles Times reporter Elizabeth Mehren contributed to this report from Boston; information from Seattle Times archives also is included.

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