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The honeymoon is over. More than 4,000 same-sex marriages performed in San Francisco in February and March have been declared null and void. The California Supreme Court this morning did what many expected and 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 Supreme Court 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 Family Code �300 “clearly limits marriage in California to a marriage between a man and a woman.” “From a practical perspective,” Chief Justice Ronald George wrote, “we believe it would not be prudent or wise to leave the validity of these marriages in limbo for what might be a substantial period of time given the potential confusion (for third parties, such as employers, insurers or other governmental entities, as well as for the affected couples) that such an uncertain status inevitably would entail.” In separate opinions, Justices Joyce Kennard and Kathryn Mickle Werdegar agreed that the city had acted inappropriately, but felt the court didn’t need to take the extra step of invalidating the marriages. The court, they argued, should first decide whether laws prohibiting same-sex marriages meet constitutional muster. “ Until that constitutional issue has been finally resolved under the California Constitution,” Kennard wrote — italics hers — “it is premature and unwise to assert, as the majority does, that the thousands of same-sex weddings performed in San Francisco were empty and meaningless ceremonies in the eyes of the law.” Werdegar went further by saying that the court had denied “basic fairness” by invalidating the marriages when none of the couples was a party to the suit. “By postponing a ruling on this issue,” Werdegar wrote, “we could preserve the status quo pending the outcome of the constitutional litigation. Instead, by declaring the marriages ‘void and of no legal effect from their inception,’ the majority permanently deprives future courts of the ability to award full relief in the event the existing statutes are held unconstitutional. “This premature decision can in no sense be thought to represent fair judicial process.” Today’s decision comes six months to the day after the city of San Francisco began issuing marriage licenses to same-sex couples. On Feb. 12, the city surprised the world by declaring that the state and federal constitutions required them to issue such licenses. It was an act of civil disobedience that caught fire in a city known for gay activism. For several weeks thereafter, lines wrapped around City Hall as couples flew in from around the world to say their vows and be pronounced “spouses for life.” Today the high court said San Francisco city officials simply could not ignore Family Code statutes that limit marriage to a civil contract between a man and a woman. “Although every individual (lawyer or non-lawyer) is, of course, free to form his or her own opinion of what the Constitution means and how it should be interpreted or applied,” Chief Justice George wrote, “a local executive official has no authority to impose his or her personal view on others by refusing to comply with a ministerial duty imposed by statute.” He compared San Francisco officials’ actions to those of a local official refusing to follow gun-registration laws by arguing that they violate the Second Amendment right to bear arms. George explicitly stated that today’s ruling was narrow, and he made no direct statements about whether laws banning same-sex marriage are constitutional. Kennard and Werdegar issued similar cautions, but their opinions nonetheless could be read as more supportive of gays on the constitutional issue. Werdegar pointed out that interracial marriages once considered void were nonetheless recognized as valid once the U.S. Supreme Court shot down anti-miscegenation laws in 1967′s Loving v. Virginia. Kennard stated that marriage is the “most significant and most highly treasured experience in a lifetime,” and that same-sex couples “have waited years, sometimes several decades, for a chance to wed, yearning to obtain the public validation that only marriage can give. “In recognition of that,” she added, “this court should proceed most cautiously in resolving the ultimate question of the validity of the same-sex marriages performed in San Francisco.” Even Justice Carlos Moreno, who voted with the majority on both issues but issued a short concurrence, described the ban on gay marriage as a statute “over which hangs a substantial cloud of unconstitutionality.” A direct challenge to the state law is already under way in San Francisco Superior Court. It was brought by several same-sex couples in San Francisco and by the city. Today’s ruling requires the city of San Francisco to notify all couples illegally wed that their marriages are void and to offer them refunds. The cases are Lockyer v. City and County of San Francisco, S122923, and Lewis v. Alfaro, S122865.

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