The California Supreme Court declared that San Francisco Mayor Gavin Newsom overstepped his authority when he issued marriage licenses to gay and lesbian couples. It ordered that the marriage licenses that were issued be voided.
Chief Justice Robert M. George wrote the five-member majority opinion issued Aug. 12. The ruling did not explore the issue of whether restricting marriage to only between a man and a woman violates the California Constitution, that case will be heard in trial court in September
The Court took pains to make clear in the opening sentence of the decision that it was addressing 'an important but relatively narrow legal issue' on the authority of local officials to decline to enforce a statute they believe is unconstitutional.
San Francisco Mayor Gavin Newsom had argued that the law banning gay marriage was unconstitutional and his higher allegiance as an elected official was to the state constitution.
The Court ruled, 'A local executive does not possess such authority.' It ordered officials to enforce those provisions 'unless and until they are judicially determined to be unconstitutional and to take all necessary remedial steps to undo the continuing effects of the officials' past unauthorized actions.'
That includes 'making appropriate corrections to all relevant official records and notifying all affected same-sex couples that the same-sex marriages authorized by the officials are void and of no legal effect.'
But it offered a window of hope for gay couples when it made clear that this case was not about same-sex marriage or whether banning them is unconstitutional. 'Our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue.'
The bulk of the 114-pages of the majority decision and separate opinions dealt in excruciating detail with legislative history and case law on limitations to the authority of appointed and elected officials at various levels of authority within the state.
It emphasized the fact that, 'Every act of the legislature is presumed constitutional until judicially declared otherwise, and the oath of office 'to obey the Constitution' means to obey the Constitution, not as the officer decides, but as judicially determined.'
The majority opinion outlined the lack of training, consistency, and procedural due process to protect individual rights in the chaos that would ensue should each city or state employee have such authority.
In a separate 12-page opinion, Justice Joyce L. Kennard agreed with the bulk of the legal argument but dissented on voiding the marriages that had already been performed. She argued that some 'defects' in marriage licenses have not made them invalid in the past, and this may turn out to be the case with the ones authorized by Newsom.
'Until that constitutional issue has been finally resolved under the California Constitution, it is premature and unwise to assert ... that the thousands of same-sex weddings performed in San Francisco were empty and meaningless ceremonies in the eyes of the law.'
Justice Kathryn Mickle Werdegar expressed a similar view in her opinion. Noting that a challenge to the constitutional question has been filed, she wrote, 'Should the relevant statutes be held unconstitutional, the relief to which the purportedly married couples would be entitled would normally include recognition of their marriages.' That was the case when state laws banning interracial marriage were declared unconstitutional.
Werdegar also took the majority to task for an overly broad restriction upon the ability of executive offices to challenge the constitutionality of statutes.
The lawsuit dealing with the constitutionality of banning same-sex marriage will be heard this fall in trial court and likely will make its way through appeals to the California Supreme Court next year.
'It is wrong to deny tens of millions of Americans the same rights and privileges that people like myself have been afforded just through happenstance because we married somebody of a different gender,' said San Francisco Mayor Gavin Newsom. 'This ruling is merely a temporary delay in our ongoing struggle for equality.'
California Attorney General Bill Lockyer said the narrow ruling 'reaffirmed the important legal principle that non-judicial elected officials do not have the authority to unilaterally declare a state law unconstitutional.'
He stated his 'respect' for the gay couples but said his responsibility was to uphold the law as written, 'Including California's historic domestic-partner law, which is under attack by the [conservative] Alliance Defense Fund.'
Lambda Legal's Jon Davidson emphasized the narrow character of the ruling. However, he said, 'It's shockingly disrespectful that the court invalidated more than 4,000 marriages without even hearing from those couples. It is an extreme step to take away people's marriages and rob them of critical protections without even allowing them to have their day in court.'
