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State pushes attack on gay unions
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SAN FRANCISCO — California Attorney General Bill Lockyer said
Monday that he would go to the California Supreme Court this week
and ask the justices to decide whether marriages between gays
violate the state’s Constitution.
If the justices agree to hear the case, the rare move could
bypass lower courts that are currently considering whether San
Francisco officials can give marriage licenses to same-sex couples
in defiance of state laws that limit marriage to “a man and a
woman.’’
San Francisco officials argue that the state law is at odds with
the state Constitution’s ban on discrimination.
“The Supreme Court has the authority to stop a charter
city’s violation of state law, and that immediate action by
the highest state court is necessary because this is a matter of
statewide concern and urgency,” Lockyer’s office said
in a prepared statement.
Lockyer said the state would file its petition on Friday with
the court, which has the final say in disputes over the meaning of
the California Constitution. The court has no legal deadline for
acting on such a petition and may direct a trial judge or the Court
of Appeal to review the legal issues first, he noted.
Lockyer’s statement that the issue was one of
“urgency” seemed at odds with his position as recently
as Friday.
In response to a letter from Gov. Arnold Schwarzenegger on
Friday demanding that he act “immediately” on the gay
marriage issues, Lockyer had said that there was no public
emergency involved in the marriages and that legal challenges
already in the courts would be adequate to resolve the issue.
The case will almost certainly confront the justices with at
least two constitutional issues. One was raised in Lockyer’s
statement – whether San Francisco officials have the right to
go against state lawby issuing marriage licenses to same-sex
couples. The other is the issue city officials prefer to emphasize
– whether the constitution’s guarantee of equal
protection trumps those laws.
Opponents of gay marriage have been hoping to get the case to
the high court as quickly as possible. Six of the court’s
justices are Republican; one is a Democrat. The court is generally
considered by legal experts to be moderately conservative.
Two lawsuits against gay marriage and a separate suit by San
Francisco challenging the constitutionality of the state’s
marriage laws are now pending in San Francisco Superior Court. A
hearing has been scheduled for March 29.
Before announcing his legal action, Lockyer said that he had
expected California’s courts eventually would reject same-sex
marriage and invalidate the licenses of the more than 3,000 gay
couples who have been married here.
“He is confident the courts are going to rule the law is
only marriages between a man and a woman are valid in the state of
California,” said Hallye Jordan, Lockyer’s
spokeswoman.
Lockyer predicted the demise of gay marriage in California while
visiting Santa Clara County to give a speech. His remarks triggered
immediate criticism from one of the gay-rights groups that is
defending the marriages in court.
“The state’s attorney general should understand
better than anyone that local officials must abide by the state
Constitution,” said Jon Davidson, a senior lawyer for Lambda
Legal, which defends gay rights in court cases across the
country.
Protecting constitutional rights is “a duty the attorney
general shares, and we’re disappointed he seems unwilling to
fulfill it,” Davidson said.
In other developments Monday, a group opposed to gay marriage
moved to prevent San Francisco Superior Court Judge James L. Warren
from hearing the group’s challenge of same-sex nuptials.
Each side in the legal dispute is permitted one challenge, which
is automatically granted, to remove a judge.
Unless the state Supreme Court grants Lockyer’s petition
to take over the case, the gay marriage dispute will probably be
heard by San Francisco Superior Court Judge Ronald Quidachay, an
appointee of former Gov. Jerry Brown and a strong advocate of
diversity on the bench.
A spokesman for San Francisco City Attorney Dennis Herrera said
the city has no objections to Quidachay.
The city previously had asked to have two lawsuits against gay
marriage consolidated before Warren.
Warren had the first hearing on the marriages, but “now Judge
Quidachay is equally up to speed on the case, and the city’s
position is that it has no preference for one over the
other,’’ said Matt Dorsey, Herrera’s
spokesman.
Warren, an appointee of former Gov. Pete Wilson and the grandson
of the late U.S. Supreme Court Chief Justice Earl Warren, had given
the city until March 29 to argue why gays should be allowed to
continue to marry. That remains the next scheduled hearing in the
case.
Liberty Counsel, one of the groups challenging San
Francisco’s gay marriages, had filed the motion to disqualify
Warren.
A spokesman for the group declined to say why Warren was
unacceptable, and the motion also failed to explain why Warren was
deemed “prejudiced” to the group’s lawsuit.
Liberty Counsel and the Alliance Defense Fund, both legal
advocacy groups that represent the rights of religious
traditionalists, have filed suit against San Francisco to stop the
marriages.
San Francisco brought the attorney general’s office into
the case by filing its own suit challenging the constitutionality
of California’s marriage laws.
Meanwhile, San Francisco on Monday began requiring couples who
want marriage licenses to make appointments. Only 56 appointments
will be granted each day. The city was marrying several hundred gay
couples a day.
Maura Dolan
Los Angeles Times
