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During two hours of argument on same-sex marriage Tuesday, the California Supreme Court appeared unlikely to allow local officials to issue marriage licenses to gay and lesbian couples before a court says California’s marriage laws are unconstitutional. Some of the justices also expressed concern about what to do with 4,000 same-sex marriages already performed. But at least two justices seemed reluctant to invalidate them without first hearing from the affected couples. The justices aren’t expected to address the constitutionality of the marriage laws until pending challenges come up through the lower courts, perhaps years from now. But they posed several questions about the constitutional merits, which the city has entwined in its defense. Some of the justices keyed in on how the arguments have evolved since the court took the case in early March. Chief Justice Ronald George hinted that city officials would, in the long run, be better off emphasizing the state Constitution rather than the federal Constitution when arguing that state laws limiting marriage to one man and one woman are unconstitutional. In its early briefs, the city stressed equal protection under the state Constitution, George said. “Of course, if the city were to be successful along those lines, the [decision] would be insulated from” review by the U.S. Supreme Court, he noted. But in subsequent briefs, faced with Article III, Section 3.5 of the state Constitution — which the city’s opponents argue bar it from defying state laws before an appellate court has found them unconstitutional — the city raised the federal Constitution, George said. “I think there’s some conflict here, and I don’t quite understand the shift in reliance,” the chief justice told Chief Deputy City Attorney Therese Stewart. Stewart had barely begun her argument, saying all public officials owe their allegiance first to the federal Constitution, when George interjected. “Would your position be the same,” if a sheriff refused to enforce gun control laws based on the Second Amendment?, George asked. Citing a similar analogy, Justice Kathryn Mickle Werdegar asked how Stewart would limit such power. “A local official needs to act in good faith” on supportive judicial authority, Stewart said, emphasizing that writ of mandate review, as was before the court Tuesday, provides a check on such judgments. On the other side of Tuesday’s argument, Deputy Attorney General Timothy Muscat and Alliance Defense Fund Senior Counsel Jordan Lorence also recast their arguments. While both pinned their separate, original February briefs to Section 3.5, they’ve more recently emphasized broad doctrines, such as the separation of powers between government branches, and deference to the judiciary. The justices seemed to grapple Tuesday with whether Section 3.5, which addresses administrative agencies, could or should be construed to apply to San Francisco officials. If the court were to disagree that Section 3.5 applied to San Francisco officials, “Does that mean you lose, or do you have other arguments to support your position?” Justice Ming Ching asked Muscat. Muscat raised separation of powers, adding, “San Francisco showed absolutely no judicial restraint.” And while some justices expressed concern that giving the city a pass would set a bad precedent, it wasn’t clear what legal basis might persuade them to find that the city officials exceeded their authority. Lorence, whose Alliance Defense Fund represents three San Francisco residents, said, “I don’t think this court needs to reach Article III, Section 3.5.” Though George twice suggested ways that Section 3.5 might apply, he also pressed Stewart on whether the executive branch’s function is to engage in “quasi-judicial determinations.” “There’s always been an overlap” between the branches, Stewart said. Local officials will ultimately abide by the court’s decision, but it’s not unusual for them to look at the constitutional issues in the first instance when performing their duties, she said. Turning to the question looming over the court, Werdegar asked if there was a due process problem with invalidating the marriages without the couples’ involvement. Muscat argued that the court should avoid confusion and legal limbo. “As a matter of judicial economy, it makes a great deal of sense.” Due process isn’t an issue, Lorence agreed. Noting a disclaimer on the forms the city gave to same-sex couples that the marriages might not be legally recognized, Lorence argued that the couples knew they were making a statement, as opposed to securing legal rights. “There has to be a reasonable expectation in the validity of the license before due process is triggered.” The city’s argument that the couples would be denied due process is ironic, George suggested, given that San Francisco officials began issuing the same-sex marriage licenses Feb. 12 — a court holiday — before anyone could present opposing arguments. “This came out of the blue.” George noted that if the status of the licenses isn’t cleared up, though, the couples, employers and governments will be left in legal limbo. “Are these matters not of significance?” “There will be a window of uncertainty,” Stewart said. “I don’t think uncertainty rises to the level of chaos.” A class action could give the couples an opportunity to be heard without 4,000 separate proceedings, she said. For the attorney general, the case is about process. Deputy AG Muscat, speaking to the press after the arguments, said, “The position of the attorney general’s office is [constitutionality] is a question that has to be decided by the Legislature, the people or the judiciary.” One justice seemed to agree the city had jumped the gun. “It’s the city that created this mess,” Justice Marvin Baxter said. He wanted to hear why city officials didn’t seek a judicial determination before putting couples in limbo. “If the law is so clear, you have options.” Stewart replied that if the city had sought an attorney general opinion or a judicial determination, the focus would be on a dispute between officials. “The case would not have focused on the real people whose rights are at stake.” The cases are Lewis v. Alfaro, S122865, and Lockyer v. San Francisco, S122923. A ruling is expected within 90 days.

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