Judge Says Gay Wedding Might Violate Law

By: Associated Press
By: Associated Press

A judge said San Francisco might be violating the law by issuing marriage licenses to gay and lesbian couples, but he declined Tuesday to order an immediate halt and the mayor said the weddings would continue.

A conservative group had asked Judge James Warren to immediately stop the weddings and void the 2,636 same-sex marriages performed at City Hall since Thursday. Instead, Warren told the city to "cease and desist" or return to court March 29 to explain why they haven't.

The nonbinding order frustrated conservatives who also failed earlier in the day to persuade another judge to halt the weddings as part of a separate challenge, which was filed by the Campaign for California Families. Judge Ronald Quidachay said he was not prepared to rule and told that group to return on Friday for another hearing.

Mayor Gavin Newsom said the city had no plans to stop the marriages.

"We will continue to do what we've done," he said. "There was nothing particularly compelling after today that makes me think that we should back off. In fact quite the contrary. After three hearings, I now feel more resolved."

The Proposition 22 Legal Defense and Education Fund had asked Warren, a San Francisco Superior Court judge, to issue an order commanding the city to stop issuing the licenses.

Warren's decision was "not 100 percent of what we were looking for," acknowledged Robert Tyler, a lawyer for the Alliance Defense Fund, which argued the case on behalf of the Proposition 22 group. Still, Tyler said he was pleased.

"The judge would not issue a cease and desist order unless the judge made a determination that the mayor is in violation," Tyler said.

Erwin Chemerinsky, a University of Southern California legal scholar, called the ruling a short-term victory for the city but said the ultimate decision would be made by a higher court.

"This is an issue that is going to be decided by the California Supreme Court," Chemerinsky said. "These are just the early stages of what's going to be a long legal battle."

Gay couples from as far as Europe have been lining up outside City Hall since Thursday, when city officials decided to begin marrying same-sex couples in a collective act of official civil disobedience.

Newsom has said the city will pursue a constitutional challenge through the courts. Newsom says the equal protection clause of the California Constitution makes denying marriage licenses to gay couples illegal.

"What trumps any proposition is the California Constitution," City Attorney Dennis Herrerra said Tuesday.

The conservatives want the courts to nullify the marriages and block the city from granting any more "gender-neutral" licenses.

The newly elected mayor's decision to permit gay marriages, while still legally unsettled, has intensified the national debate over whether same-sex couples should be allowed to marry and enjoy the many benefits only married couples receive.

The Campaign for California Families said state law explicitly defines marriage as "a personal relation arising out of a civil contract between a man and a woman." The group also argues that San Francisco is violating a ballot measure approved by California voters in 2000 that said only marriages between a man and woman are valid.

Gov. Arnold Schwarzenegger urged city officials to stop the same-sex weddings.

"I support all of California's existing laws that provide domestic partnership benefits and protections," Schwarzenegger said in a statement. "However, Californians spoke on the issue of same-sex marriage when they overwhelmingly approved California's law that defines marriage as being between a man and a woman."

The Massachusetts Supreme Judicial Court in November ruled that its state constitution permits gay marriages. Lawmakers there are debating a constitutional amendment to ban same-sex marriages.

In Virginia, gay rights proponents scored victories in the conservative-leaning House of Delegates on measures involving access to health insurance and home loans.

The House, which last week passed a bill reaffirming the state's ban on gay marriage, narrowly passed legislation Monday that would allow employers to offer group insurance benefits to gay partners who live together. It rejected a measure seeking to make state mortgage loans available only to married heterosexuals or blood relatives.


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