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San Francisco lawyer Nanci Clarence was in her car Aug. 12 when she heard that the California Supreme Court had invalidated thousands of same-sex marriages performed in San Francisco a few months back. Tears streamed down her cheeks, she said, because she and filmmaker Lidia Szajko were among those couples, having taken their vows as “spouses for life” on Feb. 20, eight days after the city began issuing licenses. “All my life I’ve fought for acceptance in my family and my community,” the Clarence & Dyer partner said, “and for a fleeting moment that acceptance felt pretty replete, and it was a great feeling. And to have it suddenly taken away feels like a body blow.” Clarence’s reaction was typical on a day when the court did what many expected. So was her belief that the court had left telltale signs that state laws prohibiting gays and lesbians from marrying will someday be declared unconstitutional. The court ruled unanimously that the city of San Francisco exceeded its authority by performing marriages not recognized by state law. The justices stated no opinion on the underlying question of whether denying same-sex marriages violates the California Constitution. They indicated that issue would be resolved later, in the cases now being brought by same-sex couples who have been denied licenses. The vote was closer on the related issue of whether the marriage licenses already issued should be invalidated. By a 5-2 vote, the court said the marriages were void from their inception because the state “clearly limits marriage in California to a marriage between a man and a woman.” Clarence and several others took hope from the majority’s narrow ruling on the city’s lack of authority to issue licenses to same-sex couples, and from separate opinions by Justices Joyce Kennard and Kathryn Mickle Werdegar that could be read in support of gays on the yet-to-be-decided constitutional issue. “I am pleased that the court reiterated several times that it was not addressing the ultimate constitutional question,” said Kathryn Kendell, executive director of the National Center for Lesbian Rights. “This court is more than ready to give an objective, rational, and fair hearing to an affirmative marriage challenge.” Jennifer Pizer, senior staff attorney in the Los Angeles office of Lambda Legal Defense and Education Fund, said the justices went to great lengths to separate out the constitutional issues. But Douglas Kmiec, a professor of constitutional law at Pepperdine University School of Law and the former dean of Catholic University’s law school, who describes himself as a defender of traditional marriage, said gay advocates are reading too much into the opinion. “What can’t be overlooked,” he said, “are the statements by the court that the [state law], including its affirmation of marriage as a relationship between a man and a woman, is unambiguous and clear, and that no public official could have misunderstood it in a credible fashion.” Kmiec agrees that the justices appear eager to have the constitutional issue come before them eventually, and he thinks the court was arming itself with information on both sides of the coin. “They point out not only the developments in Massachusetts, but the fact that there is a significant body of case law to the contrary,” he said. “And the court indicates it is not just aware of those judicial developments, but is also monitoring those states that are already involved in affirming traditional marriage.” Evan Wolfson, executive director of Freedom to Marry, a national group promoting marriage rights for gays, cautioned about divining the tea leaves on the court’s thoughts on the constitutional issues. The ruling, he said, was “simply about timing and process.” However, it “does raise the question of who benefited today,” Wolfson said. “How is anyone better off because these families are temporarily deprived of their marriages? Were we in danger of running out of marriage licenses?” After the ruling was released shortly before 10 a.m., Aug. 12, several disappointed couples gathered on the courthouse steps. Coincidentally, they stood next to a heart sculpture bearing the words, “Broken heart, but not heartbroken.” “This is just a temporary setback, and we will prevail,” said Deborah Sica, who married her partner of five years on Valentine’s Day. Stuart Gaffney and John Lewis, who married on Feb. 12, the first day licenses were issued, said the decision, though expected, reinforces their desire to fight harder for equality. Lewis, a lawyer who is on leave from his solo practice, said he believes courts around the country are getting behind gays on civil rights issues and that the California Supreme Court will be no different. “What I read between the lines of the opinion,” he said, “is that the court sees lesbian and gay people as real human beings entitled to full dignity, and I am hopeful that with that understanding, when they have a case that actually presents the constitutionality of a law that bans same-sex marriage, they will hold it violates equal protection.” C. Martin Meekins, an associate in the Los Angeles office of White & Case who specializes in pro bono constitutional work on gay and lesbian issues, feels the same way. Nonetheless, he said the court ruled correctly Thursday. Meekins, a director of the gay political group, Log Cabin Republicans, said the state should never have passed a law banning marriage by gays and lesbians, but felt San Francisco Mayor Gavin Newsom acted inappropriately. “Logically,” he added, “it follows if an official acts inappropriately, you cannot enforce their actions.” Mike McKee is an associate editor with The Recorder , the newspaper published by American Lawyer Media in San Francisco where this article first appeared. He and his partner were among the couples whose marriage licenses were invalidated. Staff writer Pam Smith of The Recorder contributed to this report.

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