As court mulls, gays wed
A judge may decide as soon as Friday whether to stop San Francisco's rush of gay marriages.
SAN FRANCISCO — For the past week, the broad granite steps of San Francisco's City Hall have stood like a finish line to gay and lesbian couples from every corner of the United States.
They have come by the thousands to line up in the rain of a raw northern California winter - in a blocks-long gathering that is part street festival, part civic protest. All in the hope of exchanging wedding vows beneath the hall's gilded dome - and in defiance of state law.
In truth, though, the conclusion to their dream lies not here, but just across the road. It's there, in California's conservative-leaning Supreme Court, that this audacious challenge to the traditional notion of the American family is likely to be decided.
The outcome will not only affect those who have flocked to wed, but it will also the shape the national conversation on what may be, at present, the most divisive issue in American society.
The first step toward a court decision could come Friday, when a local judge considers whether to stop San Francisco from issuing marriage licenses to anyone but a man and a woman.
"The California Supreme Court is going to have to resolve this question," says Erwin Chemerinsky, a law professor at the University of Southern California in Los Angeles. "So long as the California courts decide this is an issue of California law, the United States Supreme Court won't get involved."
California is hardly the only state dealing with such issues. As states across the nation consider gay marriage - or constitutional amendments to block it - the focus as of early last week was on Massachusetts, where the state's highest court says the state constitution permits gay marriages. But by the end of the week, as San Francisco was issuing marriage licenses to same-sex couples at Mayor Gavin Newsom's order, Massachusetts lawmakers had decided to postpone deliberations on possible constitutional amendments. Thus, for the moment, California stands at the epicenter of the controversy.
Since San Francisco began offering marriage licenses to same-sex couples last Thursday, two conservative groups have separately asked courts to step in and stop the city. Responding to one of the requests, a judge asked the city to stop, but didn't make his order binding, meaning that the city could continue until its next court date on March 29. That leaves Friday's hearing on the other request, which could immediately stop the city.
Some legal experts suggest that San Francisco's decision to grant marriage licenses to same-sex partners will crumble in the state's highest court. Others argue that the city is using the same tactic that worked in Massachusetts. The case essentially turns on two opposing views of the California Constitution. On one hand, a proposition overwhelmingly adopted by state voters in 2000 declares that only marriages between a man and a woman are valid in California. But San Francisco Mayor Gavin Newsom contends that same-sex couples are afforded the right to marry under the equal-protection clause of the state constitution.
"It's a perfectly plausible and respectable legal argument," says Jesse Choper, a law professor at the University of California at Berkeley. "The question is whether it is a winning one."
Mr. Choper has his doubts. Six of seven high court justices were appointed by Republican governors, and tend to be more conservative than the justices in Massachusetts. Still, Choper points to the momentum of the Massachusetts ruling - along with US Supreme Court's recent decision to strike down an anti-sodomy law in Texas - as a sign that anything is possible.
"The decision about Texas last year gives [San Francisco] a leg to stand on - not two legs," he says. "But you never know."
Other legal scholars, however, insist that the state Supreme Court will reject San Francisco's claim emphatically. It's not because San Francisco's argument is unsound, but rather its methods. The state alone has legal authority to recognize marriages, not cities. Therefore, the current case could come down to an issue of authority, not equality.
"This is simply an issue of state versus local authority, and the state wins," predicts Gerald Uelman, a law professor at Santa Clara University.
Then there's the broader question of which side benefits in public opinion from San Francisco's move. Actions like Mayor Newsom's possibly could galvanize opposition to gay marriage nationwide.
"If our democracy and republic are to survive, the rule of law on marriage must be protected," said Randy Thomasson of Campaign for California Families, one of the groups suing San Francisco, in a press release. "All people have worth in God's eyes, but marriage is only for a man and a woman."
Among some in the gay-rights community, there are concerns about moving too fast. But to others, the new sense of urgency both in San Francisco and nationwide represent an opportunity for change.And the fact that a heterosexual mayor staked his political future on a gay cause is a watershed event - even in liberal San Francisco.
Indeed, the scenes that have unfolded in and around the great gray box of City Hall have been nothing short of giddy. State Rep. Mark Leno, backer of a new same-sex marriage bill, showed up one night with grilled snacks.
Inside, more than 2,600 couples have wed. Vicki Zettler came on the first day. Her partner instant-messaged Ms. Zettler at work when she heard the news: Do you want to get married? By the afternoon, they were waiting in the foyer of the city clerk's office, keeping tabs on their license, the parking meter outside, and their place in history. says Zettler: "I didn't think this would happen in my lifetime."