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Experts on the California Supreme Court and gay issues said Thursday’s orders on San Francisco’s same-sex marriages signal the court’s intent to proceed cautiously in an area fraught with political and moral landmines. The court clearly wants to steer clear of the broad constitutional matters for now, while trying to immediately answer whether the city had authority to defy state law. And while the court put a stop to gay marriages, it was noteworthy that they didn’t invalidate those already licensed. Even so, some experts said the court’s decision to ask the city to defend its decision to issue same-sex marriage licenses means the “handwriting’s on the wall.” “I think they will conclude that the city’s authorities exceeded their authority in effectively declaring a statute unconstitutional,” said Gerald Uelmen, a professor at Santa Clara University School of Law. But Jon Eisenberg, an appellate specialist in the Oakland office of Encino’s Horvitz & Levy, felt that the order to show cause on local versus state authority is a side issue. “Isn’t that collateral,” he asked, “to the real issue of whether or not Proposition 22 is constitutional?” He said several colleagues had e-mailed him suggesting that the court ducked the hard issues of the case. But by welcoming a Superior Court suit on the constitutionality of same-sex marriages, Eisenberg said, the court seems to have set the stage for the real battle in the trial courts where the issues could be developed before percolating back up through the courts. “What might be ducking to one person might be waiting for a fully developed record,” he said. “What it means is, it’s going to be a battle of experts.” Uelmen said issues of this type should be vetted through the court system. “There are a lot of nuances to the issue that should be fully developed,” he said, “and it’ll give the court lots of time to think about it.” He speculated that it could take two years for the constitutional issue to reach the Supreme Court. San Francisco City Attorney Dennis Herrera filed just such a case immediately after the orders were issued. Jon Davidson, senior counsel in the Los Angeles office of New York’s Lambda Legal Defense and Education Fund, said it is important to realize that the court has not ruled on the merits and has not permanently halted the issuance of marriage licenses to gay couples. “The court basically said that until they hear this, ‘everybody take a deep breath, but we’ll put the matter on pause,’” Davidson said. ‘”And once we hear this, we’ll let you know what we think.’” He also noted that the court didn’t nullify licenses already registered and that it couldn’t anyway. “Even if somebody issues a marriage license or performs a wedding when they weren’t supposed to, that doesn’t invalidate the marriage,” Davidson said. “It can only be invalidated in a situation where the marriage would be void — and the only void marriages in California are for bigamists, polygamists or if incestuous.” He said that Thursday’s court ruling puts in question a cross-complaint filed against the state Wednesday by Lambda, the National Center for Lesbian Rights and the American Civil Liberties Union on behalf of five same-sex couples and Equality California. The ruling stayed all proceedings. “So it sounds like we might have to file [our suit] as a separate action,” he said. Davidson, along with Reed Smith partners Dennis Maio and Paul Fogel, were puzzled by the order’s request for briefs discussing the applicability of Article III, Section 3.5 of the state Constitution, but also for “any other constitutional or statutory provision or doctrine that may be relevant to the resolution of the foregoing issue.” “Well,” said Maio, who recently resigned as one of the chief justice’s top research attorneys, “that covers everything. That means you discuss anything if it’s relevant to that issue. “They could say that questions of equal protection or due process are things that could be discussed,” he said. “If they mean that, they’re opening up this proceeding to the point of a substantive challenge of the rules.” Maio also said that the court’s decision to stay marriages also indicates that the justices felt that the anti-same-sex marriage forces would likely prevail on the merits and that continued weddings could pose an irreparable harm. “That seems to be a stretch,” he said. “Unless I’m wrong, the only thing that’s happened in California is the city of San Jose recognizing marriages by its employees for the purposes of benefits. It was symbolic and a gesture of support.” By limiting the immediate briefing to the narrow issue of the city’s right to issue same-sex licenses, Maio said, the court is giving itself “a breather.” “The issue of the constitutionality of same-sex marriage is politically more difficult and sensitive,” he said, “and what this does is that the court is not going to get around to oral argument [on the narrow issue] until the end of this term, and an opinion until next term.” In the meantime, Eisenberg wondered about the legal status of those who got married. “The Supreme Court said there can’t be more, but there are [thousands] who already have licenses,” he said. “The Supreme Court said they are not void. What’s [their] status? Are [thousands of] people in limbo now?” Lambda’s Davidson said he remains encouraged and confident. “We’re still at the very early stages of a battle that’s going to unfold over the next couple of years,” he said. “And it’s already playing itself out on multiple fronts. A month ago [today], we launched off in a new direction. Now with the existence of marriage, of same-sex couples, that will change the way people think.” Eisenberg said if the court had denied the stay and let same-sex marriages continue as the whole thing played out in the lower courts, “by the time it got back to the Supreme Court it would be old news.” Maio noted that the public airing of the issue has been good. Conservatives who strongly opposed any kind of same-sex benefits now support civil unions as an alternative to marriage. “It’s quite positive,” Maio said.

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