SF Mayor 'Violated' Governor, Supreme Court On Gay Marriage
Fri. March 26, 2004 12:00 AM by 365gay.com
San Francisco, California -
California's Attorney General says San Francisco Mayor Gavin Newsom's decision to allow same-sex couples to marry was a power grab that violated the separation of powers by assuming "more power than the Governor, or the Supreme Court, or the Legislature."
The argument by Bill Lockyer is part of his brief to the California Supreme Court which which was filed Thursday. The court is considering whether Newsom had the legal authority to direct the county clerk to begin issuing marriage licenses to gay and lesbian couples.
The 29-page brief rejects the city's argument that local officials were obligated to grant the licenses because the California Constitution forbids discrimination.
State law "controls every aspect of marriage, leaving nothing to the discretion of local government" Lockyer argues. The brief goes on to say that under the American system of government, only the judiciary can determine a law's constitutionality.
"The foundation of our constitutional structure consists of a separation of powers and a system of checks and balances," Lockyer's brief said. "Respondents purport to be defenders of the Constitution, yet they ignore these most fundamental concepts."
Lockyer points to three sections of the California Family code which defines marriage as a union between a man and woman.
The Arizona-based Alliance Defense Fund also filed papers with the court on Thursday arguing that if the court accepts the city's argument, "every local official has unfettered discretion to interpret and apply the state and federal constitutions according to the dictates of his or her own conscience."
Such a situation, the fund's lawyers said, would allow a mayor who opposes abortion to order prosecutors to criminally charge doctors who perform abortions and empower a mayor who doesn't believe in gun control to issue gun permits to every applicant.
"Local officials have no authority to adopt a radical interpretation of the current state of the law promoted by special interest groups," they said.
The ADF is a conservative law group and is representing three heterosexually married couples in California who oppose same-sex unions.
But the court refused to accept 'friend of the court briefs' from the Colorado-based Focus on the Family and from state Sen. William J. "Pete" Knight, author of Proposition 22, a 2000 ballot initiative that restricted California marriages to a man and a woman.
City Attorney Dennis Herrera submitted his brief to the court last week defending the mayor's actions. Herrera said that California case law is filled with examples of public officials, including previous attorneys general, refusing to enforce laws on constitutional grounds.
Herrera also pointed to other state Supreme Courts, most recently the one in Massachusetts, that already have held that denying gay couples the right to wed is unconstitutional.
"San Francisco's officials honored the law; they did not ignore it," Herrera said.
Two weeks ago, California Supreme Court justices in a unanimous ruling ordered city officials to stop granting marriage licenses to same-sex couples until they consider the case.
©365Gay.com® 2004
The argument by Bill Lockyer is part of his brief to the California Supreme Court which which was filed Thursday. The court is considering whether Newsom had the legal authority to direct the county clerk to begin issuing marriage licenses to gay and lesbian couples.
The 29-page brief rejects the city's argument that local officials were obligated to grant the licenses because the California Constitution forbids discrimination.
State law "controls every aspect of marriage, leaving nothing to the discretion of local government" Lockyer argues. The brief goes on to say that under the American system of government, only the judiciary can determine a law's constitutionality.
"The foundation of our constitutional structure consists of a separation of powers and a system of checks and balances," Lockyer's brief said. "Respondents purport to be defenders of the Constitution, yet they ignore these most fundamental concepts."
Lockyer points to three sections of the California Family code which defines marriage as a union between a man and woman.
The Arizona-based Alliance Defense Fund also filed papers with the court on Thursday arguing that if the court accepts the city's argument, "every local official has unfettered discretion to interpret and apply the state and federal constitutions according to the dictates of his or her own conscience."
Such a situation, the fund's lawyers said, would allow a mayor who opposes abortion to order prosecutors to criminally charge doctors who perform abortions and empower a mayor who doesn't believe in gun control to issue gun permits to every applicant.
"Local officials have no authority to adopt a radical interpretation of the current state of the law promoted by special interest groups," they said.
The ADF is a conservative law group and is representing three heterosexually married couples in California who oppose same-sex unions.
But the court refused to accept 'friend of the court briefs' from the Colorado-based Focus on the Family and from state Sen. William J. "Pete" Knight, author of Proposition 22, a 2000 ballot initiative that restricted California marriages to a man and a woman.
City Attorney Dennis Herrera submitted his brief to the court last week defending the mayor's actions. Herrera said that California case law is filled with examples of public officials, including previous attorneys general, refusing to enforce laws on constitutional grounds.
Herrera also pointed to other state Supreme Courts, most recently the one in Massachusetts, that already have held that denying gay couples the right to wed is unconstitutional.
"San Francisco's officials honored the law; they did not ignore it," Herrera said.
Two weeks ago, California Supreme Court justices in a unanimous ruling ordered city officials to stop granting marriage licenses to same-sex couples until they consider the case.
©365Gay.com® 2004
This article originally appeared on 365gay.com. Republished with permission.