- The Washington Times - Tuesday, May 25, 2004

SAN FRANCISCO (AP) — San Francisco’s mayor had “completely taken away” the Legislature’s power on the same-sex “marriage” matter when he issued licenses to homosexual couples earlier this year, an attorney for the state argued yesterday.

The California Supreme Court began hearing arguments on whether Mayor Gavin Newsom had abused his municipal powers when he issued the 4,000 marriage licenses.

The seven justices questioned opponents of the licenses, including the California attorney general, as well as attorneys for the city, over how much leeway elected officials have to interpret state law.

Several justices suggested that approval of Mr. Newsom’s actions would encourage a legal anarchy under which local officials could choose which laws they would follow.

“Wouldn’t that be setting a problematic precedent?” asked Justice Joyce Kennard. “Presumably, other local officials would be free to say … I don’t like that particular law, be it a ban on guns” or another issue.

That, she said, would mean “no certainty of the rule of law.”

The court used the hearing yesterday to explore whether San Francisco officials had any authority to interpret the constitutionality of state law. The justices are expected to rule within 90 days.

“Don’t cities make these kinds of preliminary constitutional determinations all the time with respect to the issuance of, say, parade licenses or news rack ordinances?” asked Justice Carlos Moreno.

“Certainly not to this degree, your honor,” responded Deputy Attorney General Timothy Muscat. He described San Francisco’s actions as a unilateral rewrite of state law that has “completely taken away” the Legislature’s power.

But Therese Stewart, San Francisco’s chief deputy city attorney, cited cases dating to 1896 that she said showed that local officials have properly refused to enforce a state law after determining it was unconstitutional.

Miss Stewart argued that the constitutional rights of individuals — in the city’s view, the right of same-sex couples to “marry” — should trump “situations that are purely of local power or authority.”

California laws define marriage as the union of a man and woman. In 2000, voters also approved a statewide initiative requiring the state to recognize a marriage only between opposite sexes.

The California Supreme Court halted San Francisco’s same-sex “marriages” in March at the request of Attorney General Bill Lockyer and opponents.

When Mr. Newsom sanctioned the “marriages” for homosexuals in February, he cited the California Constitution, which bars discrimination, and said he was duty-bound to follow this higher authority rather than the state laws against same-sex “marriage.”

The justices, however, said they would entertain that constitutional challenge only if a lawsuit worked its way to them through the lower courts. Homosexuals took that invitation and filed a lawsuit in San Francisco, but it is not expected to reach the justices for a year or two.

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