San Fran Gay Weddings OK, For Now

California Attorney General Bill Lockyer speaks to the press about his stance on same-sex marriages Friday, Feb. 27, 2004, in Anaheim, Calif.
AP
The California Supreme Court declined a request Friday by Attorney General Bill Lockyer to immediately shut down San Francisco's gay weddings.

Lockyer had asked the high court to take the matter under urgent consideration, to instruct San Francisco officials to stop issuing same-sex marriage licenses and to nullify the more than 3,400 marriages already performed.

Instead, the justices told the city and a conservative group that opposes gay marriages to file new legal briefs by March 5 in response to the attorney general's petition.

Lockyer has been under fire from every side since San Francisco, under a directive from Mayor Gavin Newsom, began issuing the marriage licenses two weeks ago.

Newsom sued the state last week on grounds that California's marriage laws - which say a marriage is only between and man and a woman - violate the state constitution's equal protection clause.

Pressure on Lockyer, a Democrat and the state's top law enforcer, intensified when Republican Governor Arnold Schwarzenegger directed him to "take immediate steps" to halt San Francisco's marriage march.

Lockyer, without taking a position on whether same-sex marriages should be deemed constitutional, told the justices it was a matter for the courts, not Newsom, to decide.

"The genius of our legal system is in the orderly way our laws can be changed, by the Legislature or by a vote of the people through the initiative process, to reflect current wisdom or societal values," he wrote. "A law can be struck down by an appropriate tribunal if the law is determined, through our judicial process, to be inconsistent with basic rights or higher legal authority."

Regardless of the Friday order, the San Francisco-based Supreme Court did not indicate whether it would decide the issue. The seven justices usually are loath to decide cases until they work their way up through the lower courts, which this case has not.

But a spokeswoman for Lockyer's office told CBS News, Radio it's encouraging that the justices asked for the briefs to be turned in so soon.

The justices also have not indicated whether they would decide the merits of the petition filed Wednesday by the Alliance Defense Fund, an Arizona-based group that also wants the court to nullify all the weddings.

Lower court judges declined to immediately rule last week on the group's lawsuit, which asserts that Newsom does not have the authority to subvert California marital laws.

With six Republicans and one Democrat, the state supreme court is viewed by legal experts as moderately conservative and the feeling is that is that eventually they will judge the marriages illegal, reports CBS News Correspondent Manuel Gallegus.

A recent survey shows most California voters do not want same-sex marriages legalized, but voters are overwhelmingly opposed to amending the constitution, Gallegus reports.

"It's a matter of statewide concern and voters want to know, Californians want to know and couples that participated in ceremonies need to know the status of their relationship," Lockyer said in Anaheim on Friday.

Supporters of the marriages have criticized Lockyer for rushing the issue to the state's highest court, while opponents of same-sex marriages have criticized Lockyer for not acting sooner.

Dennis Herrera, San Francisco's city attorney, said Lockyer "makes an unconvincing case."

The rush to the altar by gay couples this month is rooted in a November decision by the Massachusetts Supreme Judicial Court, which ruled that prohibiting same-sex marriages violated that state's constitution. The court reaffirmed the decision this month, clearing the way for full-fledged gay marriages by mid-May.

Since Newsom enlisted city officials on Feb. 12 to begin performing gay weddings, other local officials have joined in - a county clerk in New Mexico issued 26 licenses before that state's attorney general declared them invalid, and on Friday, a third front in the culture war opened when 25 gay couples exchanged vows on the village hall steps in New Paltz, N.Y.

"What we're witnessing in America today is the flowering of the largest civil rights movement the country's had in a generation," said New Paltz' Green Party mayor, Jason West.

New York Attorney General Eliot Spitzer refused to block the New Paltz ceremonies and did not issue an opinion on whether the marriages were legal. "The validity of the marriages and the legality of the mayor's action will be determined in due course in the courts," Spitzer said.

When word got out Thursday evening that West would perform the ceremonies, the number of couples seeking to marry grew quickly and the mayor set up a waiting list on the village's Web site. By 5:30 p.m. Friday, 350 couples had signed up on the Web site. West said he had received many phone calls and e-mails from people who want to marry.

West did not say when he would perform more marriages, but added, "Absolutely, I'll be doing this again. I broke no law. I abided by the constitution of New York state and my oath of office."

But a bill in the New York Legislature would ban same-sex marriages, saying a "marriage or union is absolutely void if contracted by two persons of the same sex."

Elsewhere in the country, gay and lesbian couples challenged local officials on the marriage issue. In Iowa City, Iowa, more than 30 gay and lesbian couples were denied marriage licenses by an openly lesbian county official who said she must uphold the law.

Pope John Paul II again stressed his opposition to gay unions Saturday, saying they "degrade" the true sense of marriage between man and woman. He urged Catholic and non-Catholic authorities alike to stop approving them. It was the second time in a week that John Paul has raised the issue.

President Bush, citing the Massachusetts decision and the parade of weddings in San Francisco, backed a federal constitutional amendment Tuesday to bar such marriages. "A few judges and local authorities," Bush said, "are presuming to change the most fundamental institution of civilization."

In statehouses nationwide, lawmakers are scrutinizing their constitutions to see if they could be construed to permit same-sex marriages, even in states where laws now bar them. Massachusetts is one of many states where lawmakers are considering a state constitutional amendment to bar the marriages.

Lockyer said the court's action is urgently needed because thousands of newly married gays might otherwise think they enjoy the same rights granted other married couples - such as the right to receive the other spouse's property in the absence of a will.

Already Friday, the Social Security Administration said it won't accept any licenses from San Francisco as proof of marriage until the questions are resolved.

"Until the issue of the legal validity of the licenses issued by San Francisco is resolved, thousands of holders of same-sex marriage licenses will remain in a foam of legal limbo," Lockyer wrote.

The California Supreme Court has a history of addressing marriage and gay rights cases. It was the first state high court in the nation to legalize interracial marriage 56 years ago. Twenty-five years ago, the court upheld gay rights by saying businesses could not arbitrarily discriminate against homosexuals.

Meanwhile, Republican activists who helped mount the recall of former Gov. Gray Davis last year have announced plans to seek the removal of Lockyer, who they say has "neglected his duty" to enforce state marriage laws.

Lockyer denied that he was pressured by Schwarzenegger or derelict in his duties, saying he decided to intervene after the local courts failed to stop the marriages.