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The California Supreme Court appears unlikely to allow San Francisco officials to resume issuing marriage licenses to same-sex couples. In a rare two-hour oral argument May 25, the court tried to determine whether the city exceeded its authority by issuing marriage licenses to more than 4,000 same-sex couples. The seven justices questioned why they should allow licenses when no court has declared California’s marriage laws unconstitutional. Three laws at the center of the dispute, including a 2000 voter-approved initiative, define marriage as a one-man, one-woman institution. The decision by Mayor Gavin Newsom to allow licenses to be issued to gay and lesbian couples set off a wave of same-sex weddings at San Francisco City Hall and heightened national debate on the gay marriage issue. Despite the likelihood that they would rule against San Francisco, some of the justices expressed concern about what to do with same-sex marriages already performed. 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 San Francisco has entwined in its defense. 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, 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, who argued San Francisco’s case. Justices also asked if there was a due process problem with invalidating the marriages without the couples’ involvement. But Deputy Attorney General Timothy Muscat — arguing on behalf of the state, which says San Francisco violated the law — said the court should avoid confusion and legal limbo. “As a matter of judicial economy, it makes a great deal of sense.” 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.” Justice Marvin Baxter seemed to agree the city had jumped the gun. “It’s the city that created this mess,” Baxter said. Pam Smith is a reporter for The Recorder, the American Lawyer Media newspaper in San Francisco, where this article first appeared. Mike McKee, a Recorder associate editor, contributed to this story.

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