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Hearing arguments on same-sex marriage Tuesday in San Francisco, California’s Supreme Court justices appeared unlikely to stand aside and allow local officials to issue marriage licenses to gay and lesbian couples before a court says state laws limiting marriage to one man and one woman are unconstitutional. Though the justices aren’t expected to address the constitutionality of those marriage laws until pending challenges come up through the lower courts, perhaps years from now, they posed several questions about the constitutional merits during arguments Tuesday. Some of the justices hinted the city might be better off hitching its case on that issue to the state rather than the federal Constitution. A more immediate concern for the justices was what to do with the 4,000 same-sex couples who married earlier this year. Deputy Attorney General Timothy Muscat argued the court should avoid confusion and legal limbo by declaring the same-sex marriages performed in February and March invalid. “As a matter of judicial economy, it makes a great deal of sense.” “What about the due-process rights of these couples who are not before this court?” asked Justice Joyce Kennard, echoing a question also raised repeatedly by Justice Kathryn Werdegar. Attorney General Bill Lockyer and a Arizona-based Christian legal group filed separate original petitions for writ of mandate with the state Supreme Court at the end of February to stop the gay and lesbian marriages, about two weeks after city officials started issuing those licenses in defiance of some marriage laws in the state’s Family Code. Multiple suits challenging the constitutionality of those laws are pending in trial court, and are expected to reach the high court down the road. San Francisco officials, represented by Chief Deputy City Attorney Therese Stewart, argued Tuesday they were duty-bound to begin issuing the licenses because they believe the state marriage laws violate the state and federal constitutions. Lockyer’s office and three San Franciscans represented by the Alliance Defense Fund, whose argument Tuesday was made by Senior Counsel Jordan Lorence, counter that local officials can’t pick and choose what laws to enforce. Both argued the city’s action was barred by Article III Section 3.5 of the state constitution, which says an administrative agency has no power to refuse to enforce a statute it claims is unconstitutional unless an appellate court has found it to be so. The city argued that its officials don’t fall within the definition of an administrative agency — and that even if they did, Section 3.5 can’t trump the federal Constitution’s guarantees of equal protection. Lockyer’s office argued that the court could decide, in the alternative, that under the doctrines of judicial review and separation of powers, the authority to determine the constitutionality of state statutes is expressly reserved to the courts. When the high court unanimously ordered Tuesday’s oral argument in March, the seven justices also called at least a temporary halt to the month-long stream of gay and lesbian weddings. Last month, the court indicated that it might also, based on Tuesday’s oral argument, decide the status of some 4,000 same-sex marriages already performed in San Francisco. The court’s opinion is expected within 90 days in Lewis v. Alfaro, S122865, and Lockyer v. San Francisco, S122923.

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