SAN FRANCISCO (BP)–Lawyers asked the California Supreme Court May 25 to invalidate the 4,000 marriage licenses the city of San Francisco issued to same-sex couples.
The court heard oral arguments in two cases that will decide if San Francisco officials had the authority to “marry” same-sex couples in violation of state law. The court subsequently issued a restraining order against the city. The court was not addressing the broader question of whether same-sex “marriage” in the state should be legal.
“They simply have no authority,” Timothy Muscat, associate attorney general for the state of California, told the seven justices. “The only authority … that they possess derives from the California family code, and that is the only definition of marriage in the state of California.”
California is one of some 38 states that explicitly ban same-sex “marriage.” In addition, several other parts of state law define marriage as the union of one man and one woman.
While city officials assert that they are following the state constitution, some of the justices seemed skeptical of the city’s arguments. Several justices said that if officials in other cities followed San Francisco’s lead, other laws — such as gun laws — could be disobeyed.
Confronting the city’s attorney, Associate Justice Ming Chin raised a hypothetical question: What if the state legalized same-sex “marriage”?
“Would the mayors throughout the state be free to disregard [the law]?” he asked.
“There is no such law, and I don’t anticipate there will be,” Therese Stewart, associate attorney for the city, responded.
Muscat and Jordan Lorence, an attorney for the Alliance Defense Fund, argued that the licenses must be invalidated. Stewart, though, said that tossing out the licenses would be sending the wrong message.
“If the court invalidates the licenses now,” Stewart said, “what it will be doing is signaling to the world and signaling to the couples involved that their rights to have their relationships recognized are not considered weighty enough by this court to outweigh such considerations as inconvenience and confusion.”
Associate Justice Marvin Baxter then retorted: “But, of course, it’s the city that created this mess. And I still haven’t heard an adequate explanation as to why the city did not get a judicial determination of the correctness of its position before putting all these people in the precarious position they are now in.”
Lorence asserted that the court must invalidate the licenses if the law is to be obeyed. If the court does not invalidate them, he told the justices, “You are going to send a message that other counties can do this and get away with it.”
Stewart claimed that Lawrence v. Texas — the U.S. Supreme Court decision that overturned anti-sodomy laws — set the precedence for the city’s action.
But Lorence countered by saying that the justices in the Lawrence v. Texas decision said the “case does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Lorence also argued that the U.S. Supreme Court previously set precedence on the issue of same-sex “marriage.” In the early 1970s the Minnesota Supreme Court rejected a request from a same-sex couple seeking to acquire a marriage license. The U.S. Supreme Court subsequently dismissed the case. The case is important, Lorence said, because the city of San Francisco based some of its arguments on federal law.
“[Baker v. Nelson] is the current state of the federal law,” he said.
Muscat added that the city’s action also infringes upon the legislature’s authority.
“Under this scenario the legislature is left absolutely powerless,” he said. “It’s not as if the California legislature can re-enact family code section 300 and say, ‘We really mean it this time.’ Their core authority has completely been taken away by these local officials in San Francisco.”
The two cases are Lockyer v. City and County of San Francisco and Lewis v. Alfaro. A decision is expected within 90 days.
For more information about the national debate over same-sex “marriage,” visit