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Calif. Supreme Court weighs SF mayor's marriage authority

By Emanuella Grinberg
Court TV

(Court TV) -- Neither San Francisco's mayor nor its county clerk had discretion to act as "arms of the state" when they granted 4,000 marriage licenses to same-sex couples in February, an attorney for the state told the California Supreme Court Tuesday.

"The question before the courts today was a very narrow one," deputy attorney Tim Muscat said outside the courthouse. "It's not addressing the constitutionality of whether we can prohibit same-sex marriages. That ultimately has to be decided by either the legislature or the people or the judiciary."

"It cannot be decided by a local mayor," he added, "without first going to the courts to have that right declared."

The arguments marked the beginning of a much-anticipated debate in the California Supreme Court over whether San Francisco Mayor Gavin Newsom* had the authority to issue marriage licenses to same-sex couples in early 2004.

At issue was an article of the California Constitution which says local authorities, including the mayor, do not have the power to declare a statute unenforceable or unconstitutional, nor can they refuse to enforce a statute.

The six justices questioned both sides on the implications of allowing local officials to interpret state law however and whenever they see fit.

Representing Newsom and the City of San Francisco, attorney Therese M. Stewart said Newsom wanted to take a definitive, bold stance against a voter-approved, statewide initiative requiring the state to recognize only marriages between opposite sexes that he calls "unconstitutional."

"All public officials owe their allegiance first to the constitution," Stewart said. "He did not want to enforce a statute he found unconstitutional, sometimes local officials need to act."

On behalf of plaintiff Attorney General Bill Lockyer, Muscat argued that Newsom could have sought declaratory relief through the courts if he wanted to oppose the statute.

Because Newsom circumvented the court in granting the marriage licenses, Lockyer asked the Supreme Court to invalidate those licenses.

"Under state law, they simply never existed," Muscat said. "Due process cannot be applied if there was no right to begin with."

Had Newsom sought a declaratory relief, Stewart said, the focus of the suit would have been on the division of power between state and local authorities, "instead of focusing on the rights of the parties truly affected, those who sought the licenses."

Jordan Lorence, a lawyer for another plaintiff, the Arizona-based Christian law firm Alliance Defense Fund, argued that even the county clerk questioned the validity of the licenses she was issuing.

"There was the disclaimer that the clerk put onto the applications to the licenses saying 'Hey, everyone, I want you to know, these things are of dubious validity.'"

When Justice Kathryn Werdegar asked Stewart what caused Newsom to act so urgently, even as a piece of legislation granting same-sex couples more rights will be coming into effect in 2005, Stewart stressed her client's view that anything short of marriage is not enough.

"The legislation doesn't go far enough. It is separate, but not equal," she said.

Outside the courthouse, picketers carrying signs reading "Marriage = Hospital visitation rights, parental responsibilities," echoed the sentiment.

Another suit related to San Francisco's same-sex marriage licenses is pending against County Clerk Nancy Alfaro. Neither case is expected to go to court for at least another year.

* Newsom is married to Court TV anchor Kimberly Guilfoyle Newsom, who has not been involved in the network's coverage of this issue.

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