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The California Supreme Court this week indicated it will confront one elephant that’s been in the room since the justices agreed to take on same-sex marriage: What about the marriages that have already been performed? When the high court in March called a halt to the gay and lesbian weddings a month after they began, the justices agreed to hold a hearing in May or June focused on whether San Francisco officials exceeded their authority by issuing same-sex marriage licenses. On Wednesday, the justices directed the city and its opponents to file more briefs, this time to address the validity of the same-sex marriages already performed. “If the court were to determine that respondents exceeded their authority,” Wednesday’s order asks, “would the marriages that have been performed and registered nonetheless be valid, would the marriages be voidable, or would the marriages be void?” Ever since the court’s March order, some court watchers have said it’s likely that the justices will decide city officials exceeded their authority. They say the latest order indicates the justices are preparing to address a natural follow-up question. “I think the handwriting’s on the wall” on the issue of authority, said appellate lawyer Jon Eisenberg, a partner in Horvitz & Levy’s Oakland, Calif., office and former staff attorney at the 1st District Court of Appeal. The court probably wouldn’t have stayed the marriages if it didn’t see “a serious problem,” he said. “What does that mean for all these marriages?” Eisenberg asked, calling it a “very practical question.” “I can’t help but think this is not a terribly promising order for those that are urging the court to uphold the validity of their marriages,” said Paul Fogel, a partner in the appellate group of Reed Smith in San Francisco. “But far be it for me to read tea leaves.” But Joseph Grodin, a former Supreme Court justice, said he wouldn’t read much into the order. An order for further briefs doesn’t necessarily represent the inclinations of a majority, he said. If any of the seven justices wants to ask a further question of the parties, “usually the other justices will go along.” The issues haven’t been framed at the trial level, “so it’s not surprising that the court would want to define the issues,” said Grodin, now a professor at Hastings College of the Law. The Supreme Court took original jurisdiction in the cases, Lewis v. Alfaro, S122865, and Lockyer v. San Francisco, S122923. Lawyers for the Alliance Defense Fund, plaintiffs’ attorneys in Lewis, declined to speculate on the court’s thinking. “It’s obviously dangerous to read too much into a request for additional briefing,” which is fairly standard, said litigation staff attorney Joshua Carden. In a statement, City Attorney Dennis Herrera said Wednesday’s order “is not unusual, given that amici in the case have raised questions about the effect that a decision regarding municipal authority will have, if any, on the validity of licenses.” A spokeswoman for state Attorney General Bill Lockyer, the plaintiff in one of the cases, simply said she had seen the brief and that Lockyer’s office is prepared to file further arguments. The court also asked that, if it were to determine the same-sex marriages performed are not valid, “Should the court order the city to refund fees collected from applicants for such marriages?” The city charges $82 for marriage licenses and $62 for ceremonies.

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