San Francisco Takes Center Stage by Permitting Gay Couples to Marry:
The Legal Questions the City's Actions Raise

Recently, the Massachusetts Supreme Judicial Court reaffirmed its initial opinion that the state Constitution requires gay marriage -- not just civil unions. At the time, it seemed that the gay marriage wars could hardly get more heated.

But now California--or San Francisco, to be exact--has upstaged Massachusetts. Newly-elected San Francisco Mayor Gavin Newsom issued a directive two weeks ago, instructing the County Clerk to issue marriage licenses "on a non-discriminatory basis, without regard to gender or sexual orientation."

In addition, the City is seeking a declaration from a California court saying it was right to do what it did. (The City's claims are raised in a cross-complaint, a responsive pleading to two suits seeking to invalidate the Mayor's actions and the resulting marriages.) The City argues that to do otherwise, would have been to violate the California Constitution's due process and equal protection clauses.

But Governor Schwarzenegger has responded to the City's claim with a statement that same-sex marriages are illegal under California law and therefore invalid. In a letter to the state's attorney general, the Governor also indicated his concern that the ongoing issuance of same-sex marriage licenses, despite state law that bars them, presents "an imminent risk to civil order."

The reason for his concern is plain: In the days that followed the Mayor's directive, more than 3000 same-sex couples have obtained marriage licenses and participated in marriage ceremonies in San Francisco.

But are they now truly married? Were the marriages invalid, because they were contrary to California statutes? Or, on the other hand, were the marriages valid because the statutes purporting to bar them are trumped by the California Constitution?

The legal questions raised by Mayor Newsom's directive and the ensuing lawsuits are myriad, and just beginning to unfold.

To begin, California statutes expressly deny same-sex couples the ability to marry. Section 300 of the California Family Code defines marriage as "a personal relation arising out of a civil contract between a man and a woman. . . ."

In addition, pursuant to a ballot initiative (Proposition 22) passed in 2000, section 308.5 directs that "[o]nly marriage between a man and a woman is valid or recognized in California."

At the same time, California law recognizes domestic partnerships between same-sex couples. And, beginning Jan. 1, 2005, the domestic partnership status will be enlarged such that it will virtually indistinguishable from marriage, though the names will remain different.

Thus, as I have discussed in a previous column, even putting the San Francisco marriages aside, California's protection for same-sex relationships will (as of 2005) be as strong as Vermont's. That year, it will fall short only of Massachusetts, which is slated to begin issuing same-sex marriage licenses in May.

The question, then, is whether California will end up with a system akin to Vermont's, or one akin to Massachusetts's. And that all depends on whether courts hold that the California statutes and ballot initiative I have described violate the California Constitution.

Mayor Newsom believes they do -- and, in particular, that they violate its guarantees of equal protection and due process. It was for this reason, he says, that he ordered the county clerk's office to begin issuing marriage licenses to all couples, regardless of gender or sexual orientation.

But not everyone agrees with the Mayor. Two separate lawsuits have been filed seeking a declaration that these marriages are invalid.

Last week, the two lawsuits -- together with the City's cross-complaint discussed above -- were consolidated by the judge in the Thomasson case. Consolidation means that, at a minimum, their proceedings will now be coordinated. Thus, the central substantive issue -- whether the California Constitution requires that the right to marry be extended to same-sex couples -- will likely be litigated only once on the trial court level.

Still, it's worth looking at each lawsuit separately, to begin with -- and see what proceedings have happened in each so far. Particularly interesting is the cross-complaint filed by the City of San Francisco itself.

The first suit, Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco, alleges that the city's Mayor had no legal standing to allow same-sex marriages, given the contrary state law on the books. The plaintiffs sought an order staying the Mayor's directive.

In that case, Superior Court Judge Warren denied the plaintiffs' request for a stay order -- for now. However, the judge has also ordered the city to either stop issuing licenses, or return to court on March 29^th to "show cause" why they should not be compelled by the court to stop doing so.

The second suit, Thomasson v. City and County of San Francisco, was brought with a similar motive by a conservative anti-gay-marriage organization, the Campaign for California Families. It, too, alleged that the Mayor's order was illegal and asked a different Superior Court judge for a restraining order.

In that case, Superior Court Judge Quidachay set a hearing for the Tuesday after Presidents' Day--leaving a long, three-day-weekend for gay weddings. However, it was then pushed off several more days, because the plaintiffs had failed to meet some procedural requirements.

Finally, the third complaint was filed by the City of San Francisco itself. It asks for a declaratory judgment that the state law banning gay marriage violates both the equal protection and due process clauses of the California Constitution.

(A declaratory judgment is an equitable remedy under which a court makes a declaration clarifying the meaning of a particular law, but does not necessarily accompany the declaration with a damages award, or even an injunction.)

Early comments by city officials suggested that their defense of Mayor Newsom's directive might lie in the United States Supreme Court's decision in Lawrence v. Texas. In Lawrence, the Court invalidated Texas' criminal ban on same-sex sodomy, but it has been widely argued that the opinion's reasoning paves the way for declaring that same-sex marriage bans violate the U.S. constitution. (I agree with this view, as I have discussed in a prior column.)

But the City's request for a declaratory judgment is based solely on provisions of the California Constitution. Thus, Lawrence, while still relevant, will arguably be less so, for it interprets the federal -- not the California -- Constitution.

Why did the State omit to raise federal constitutional issues? Most likely, the choice was a strategic move designed to insulate any resulting court ruling from federal review.

This issue will doubtless make its way to the California Supreme Court. And if the plaintiffs had raised a federal constitutional question, it might have gone from there to the U.S. Supreme Court -- which most observers believe is unlikely to look as favorably on same-sex marriage as the California high court.

How can that be -- given that Lawrence is a strong precedent in favor of same-sex marriage? The answer is that Lawrence, though groundbreaking, may well be as far as the Court is willing to go.

Indeed, other precedents indicate that the Justices of the current U.S. Supreme Court are extremely unlikely to rule that state bans on same-sex marriage violate the federal constitution. And Lawrence itself tried to draw a clear line: The majority opinion went to great lengths to make clear that it did not view the right to avoid criminal prosecution for same-sex sodomy and the right to marry a partner of the same sex as comparable issues.

Put simply, Lawrence's logic may require same-sex marriage (as Justice Scalia proclaimed in his dissent). But the current U.S. Supreme Court may not be willing to follow Lawrence's logic as far as it goes. As a result, San Francisco has made a decision -- probably a wise one -- to stay out of federal court.

Once a state's highest court rules on a state constitutional issue, that court -- not any federal court -- has the last word on the subject. The state's highest court is the ultimate arbiter of state constitutional claims. The U.S. Supreme Court does not have the power to override any ruling it might make.

Readers may ask another question, though: How can it be that the federal and California constitutions vary so much on this issue? Don't they both have equal protection and due process clauses? So shouldn't the result be much -- if not exactly -- the same?

The short answer is no. Federal constitutional protection for individual rights set the baseline. But states are free to provide their citizens with greater protection in their own constitutions. And that means that very similar clauses, can mean different things.

Indeed, even similarly -- or identically -- worded state and federal guarantees are not necessarily co-extensive.

That explains how the U.S. and California Constitution's guarantees of due process and equal protection can have different meanings. And if they can, they probably will: In practice, and in general, California has generally interpreted its own constitution to provide greater protection for individual rights than the federal constitution does.

So has Vermont -- which recognized civil unions under its own Constitution. And so has Massachusetts -- which legalized gay marriage under its own Constitution. The same-sex marriage cases fit into these states' general tendency to interpret their own constitutions more broadly than the federal constitution. (Accordingly, strategic choices were made in those cases, as well as in San Francisco's complaint, to make claims only under the applicable state constitution and to ignore possible federal challenges.)

Because of the consolidation order, it's likely that the substantive issue of whether California's laws violate the California Constitution will be resolved by the trial court in the near future (though no date for argument has yet been set.) A series of appeals will then follow.

But what about what happens in the interim? No judge has ordered the city to cease issuing same-sex marriage licenses. Judge Quidachay refused to issue a restraining order, given his finding the continued issuance of licenses to gay couples would cause no irreparable harm. So more same-sex marriages are likely to be added to the thousands that have already been performed.

This interim period may be crucial. As both sides seem to realize, the winner of this initial battle -- over whether the city can continue to issue licenses pending resolution of their validity -- might have a real advantage in the war, no matter how the ultimate issue is decided.

(Massachusetts may have a similar interim period issue: Same-sex couples can marry now; but what if a subsequent amendment to the state constitution -- which could not take effect for 18 months -- tries to void those already-performed marriages?)

Why would the fact of existing marriages make a difference? Because, in several ways, once gay marriages have actually taken place, it becomes more complicated to decide they are invalid.

Granted, the couples marrying in San Francisco are surely aware that their unions are at best legally ambiguous. (One sign of at least perceived legitimacy, however, is the fact that the New York Times has already included a wedding announcement for a San Francisco gay marriage in SundayStyles.)

But the legal limbo for gay San Francisco spouses should not plague Massachusetts couples who marry beginning in May; they should be able to rely on their marriages. After all, their marriages were sanctioned by the state's highest court, the ultimate arbiter of the state constitution.

Nevertheless, despite the San Francisco unions' plainly precarious state, their very existence inherently makes any judge's decision to void them more difficult. And there are several different reasons why that may be so.

Psychologically, it's harder to effectively "put asunder" a happy couple than to deny two single persons a marriage license. Telling those who have been living in a marital relationship, with a marriage license, that they are now not married, simply seems absurd and cruel. Dissolving a marriage is aggressive; declining to create one is merely passive.

And legally, some arguments against same-sex marriage may prove impossible -- or effectively impossible -- to make once same-sex marriages exist. For soon, empirical evidence about actual marriages will exist to potentially controvert the predictions.

Gay marriage opponents claim same-sex marriages hurt traditional marriages. But what if there's no evidence at all of that? Indeed, what if straight couples testify that they were inspired to marry by the evident happiness of all the gay couples at City Hall -- or that they finally did so because they felt ashamed for not having earlier exercised a right gays had to fight so hard to gain?

If empirical evidence were to undermine doom-and-gloom predictions about gay unions, it wouldn't be the first time. The advent of civil unions in Vermont certainly brought many warnings from opponents that the sky was falling. But only five years later, such unions have become an acceptable alternative even for many conservatives.

If gay marriages have no effect at all on straight marriages, will opponents still have as much enthusiasm for the fight? The most important effect of the San Francisco marriage may be a calming one: They may well serve to deflate the hysteria as to what gay marriage would mean.