Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The California Supreme Court on Wednesday indicated it will confront one elephant that’s been in the room since the justices agreed to take on same-sex marriage: What about the marriages that have already been performed? When the high court in March called a halt to the gay and lesbian weddings a month after they began, the justices agreed to hold a hearing in May or June focused on whether city officials exceeded their authority by issuing same-sex marriage licenses. On Wednesday, the justices directed the city and its opponents to file more briefs, this time to address the validity of the same-sex marriages already performed in San Francisco. “If the court were to determine that respondents exceeded their authority,” Wednesday’s order asks, “would the marriages that have been performed and registered nonetheless be valid, would the marriages be voidable, or would the marriages be void?” Ever since the Supreme Court’s March order, some court watchers have said it’s likely that the justices will decide city officials exceeded their authority. They say the latest order indicates the justices are preparing to address a natural follow-up question. “I think the handwriting’s on the wall” on the issue of authority, said appellate lawyer Jon Eisenberg, a partner in Horvitz & Levy’s Oakland office and former staff attorney at the First District Court of Appeal. The court probably wouldn’t have stayed the marriages if it didn’t see “a serious problem,” he said. “What does that mean for all these marriages?” Eisenberg asked, calling it a “very practical question.” “I can’t help but think this is not a terribly promising order for those that are urging the court to uphold the validity of their marriages,” said Paul Fogel, a partner in the appellate group of Reed Smith in San Francisco. “But far be it for me to read tea leaves.” But Joseph Grodin, a former Supreme Court justice, said he wouldn’t read much into the order. An order for further briefs doesn’t necessarily represent the inclinations of a majority, he said. If any of the seven justices wants to ask a further question of the parties, “usually the other justices will go along.” The issues haven’t been framed at the trial level, “so it’s not surprising that the court would want to define the issues,” said Grodin, now a professor at Hastings College of the Law. The Supreme Court took original jurisdiction in the cases, Lewis v. Alfaro, S122865, and Lockyer v. San Francisco, S122923. Lawyers for the Alliance Defense Fund, plaintiffs’ attorneys in Lewis, declined to speculate on the court’s thinking. “It’s obviously dangerous to read too much into a request for additional briefing,” which is fairly standard, said litigation staff attorney Joshua Carden. In a statement, City Attorney Dennis Herrera said Wednesday’s order “is not unusual, given that amici in the case have raised questions about the effect that a decision regarding municipal authority will have, if any, on the validity of licenses.” A spokeswoman for Attorney General Bill Lockyer, the plaintiff in one of the cases, simply said she had seen the brief and that Lockyer’s office is prepared to file further arguments. The court also asked that, if it were to determine the same-sex marriages performed are not valid, “Should the court order the city to refund fees collected from applicants for such marriages?” The city charges $82 for marriage licenses and $62 for ceremonies.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.