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Cal. Supremes to Rule on Gay Marriage

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High court decision will determine whether litigation or constitutionality validates San Fran weddings

As gays and lesbians continue to get married across the nation, and other local officials follow San Francisco Mayor Gavin Newsom’s lead, the legal battle over San Francisco’s gay marriages is headed for a showdown in California’s Supreme Court.

Bowing to pressure from Republican Gov. Arnold Schwarzenegger, California’s Democratic attorney general, Bill Lockyer, asked the state Supreme Court on February 27 to step in immediately and stop the weddings. The City of San Francisco filed a rebuttal on March 5, but the court has remained mum.

Now, newly-married couples, as well as same-sex marriage opponents, await the high court’s answer to Lockyer’s petition. Some legal observers predict the justices will issue a ruling this week.

The court has a wide constitutional prerogative, ranging from issuing an immediate injunction to stop the same-sex marriages, and by so doing declaring those licenses issued in San Francisco invalid, to allowing the matter to be heard in a lower trial court before litigation wends its way through the appellate system—a process that could take years before the Supreme Court resolves the matter.

At the current wedding pace, tens of thousands of gays and lesbians could be married by then.

A ruling by the high court will determine whether justices will directly hear the case, which is atypical, or wait for the appellate process to take its course. The last time the court directly intervened on a case of tremendous urgency was last fall when plaintiffs asked to postpone the recall election of former Gov. Gray Davis.

Typically, however, the court relies on the records of lower court trials to make final decisions, and in the case of same-sex marriage, no lower court has yet acted.

In his petition to the court, Lockyer said the situation is urgent. “There will be tremendous governmental and legal confusion,” he said in his petition to the court.

What Lockyer considers confusion, the City of San José, just south of San Francisco, calls their duty to uphold the state’s Constitution. On Tuesday, lawmakers of the Silicon Valley city were the first in the country to recognize San Francisco’s gay marriages, voting to accord their gay and lesbian city workers, who have married in San Francisco, the same benefits as heterosexual spouses.

California gay rights foe Sen. Pete Knight has a gay son, David, who got married in San Francisco on Tuesday. So did lesbian California Assemblywoman Jackie Goldberg. So did Rosie. Then there’s New Paltz, Arizona, Asbury Park, and Portland.

Joshua Carden, a lawyer for the Arizona-based Alliance Defense Fund, (ADF) which is one of the groups trying to stop the San Francisco weddings, says it feels like “WhackAMole,” the carnival game where you try to smash a mole back into its hole with a big hammer. But no sooner is one submerged before two others pop up on the other side of the game board.

That, according to ADF spokesman Richard Jefferson, is why conservative groups are so determined to get a national constitutional amendment banning gay marriage, including California opponents of same-sex marriages who are hoping that the state Supreme Court will stop the marriages in San Francisco. These conservative groups view Mayor Newsom as a law breaker acting in violation of the state’s family code, a renegade whose actions have encouraged what Carden called “copy-cat” actions across the country.

As of Tuesday night, San Francisco had married 3,780 same-sex couples, at a rate of about 65 couples per day, and has a waiting list for appointments that stretches past the beginning of May.

Whatever the California Supreme Court decides, there’s sure to be more litigation. As one of the soon-to-be brides, waiting in line at City Hall replied, when asked why she had come all the way from Texas to be married, “I want to be part of the class action lawsuit.”

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Updated 5:17 pm, July 20, 2018
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