California court to rule whether mayor's gay-marriage policy is abuse of power

By David Kravets
The Associated Press

AP FILE San Francisco Mayor Gavin Newsom defied state law by issuing gay-marriage licenses.

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SAN FRANCISCO — California Supreme Court justices listened skeptically yesterday to arguments that San Francisco's mayor had the right to defy state law when he issued marriage licenses to 4,000 gay couples earlier this year.

During two hours of arguments, some of the seven justices questioned how much room elected officials have to interpret the law on their own, and suggested that approving Mayor Gavin Newsom's actions would foment legal anarchy.

"Wouldn't that be setting a problematic precedent?" asked Justice Joyce Kennard. "Presumably, other local officials would be free to say ... 'I don't like that particular law,' be it a ban on guns" or another issue.

That, she said, would mean "no certainty of the rule of law."

A ruling on whether the mayor abused his powers is expected within 90 days.

The justices are not likely to decide the validity of the 4,000 gay and lesbian marriages that were performed before the high court put a stop to the practice in March. And the high court has said it will not use this case to decide the constitutionality of the state's ban on gay weddings.

When Newsom decided to let gay couples marry in San Francisco, he cited the California Constitution, which bars discrimination, and argued that he was duty-bound to follow this higher authority rather than state law.

On Tuesday, Deputy California Attorney General Timothy Muscat portrayed Newsom's action as a unilateral rewrite of state law that has "completely taken away" the Legislature's power.

However, Therese Stewart, an attorney for the city of San Francisco, cited cases dating to 1896 that she said showed local officials have properly refused to enforce a state law after determining it unconstitutional.
 
Stewart also argued that the constitutional rights of individuals should prevail in "situations that are purely of local power or authority."

California laws clearly define marriage as a union between a man and woman. And in 2000, voters approved a statewide initiative requiring the state to recognize only marriages between members of the opposite sex.

"I am very hopeful, based on the nature of the court's questions and their sensitivity to this issue, that they could craft a solution where they would find the mayor exceeded his authority without finding that the marriages are invalid," said Kate Kendell of the National Center for Lesbian Rights.

The justices said they would consider a constitutional challenge to the ban on same-sex marriages only if a lawsuit worked its way to them through the lower courts. Gays took that invitation and filed suit in Superior Court.

But that lawsuit — brought by same-sex couples denied marriage licenses — is not likely to reach the California Supreme Court for a year or two.