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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 did what many expected Thursday morning 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.” Still, lawyers from the three groups that argued the case — the city of San Francisco on one side, the Alliance Defense Fund and California Attorney General Bill Lockyer’s office on the other — are all aware this was just a warm-up. The justices repeatedly emphasized that they were not passing judgment on the constitutionality of California’s marriage laws, which limit legal unions to a man and a woman. George’s opinion “is clearly written for a lay audience, to try to persuade them that they shouldn’t read anything into this opinion beyond what’s there,” said Joseph Grodin, a Hastings College of the Law professor and former state Supreme Court justice. Even so, lawyers in and outside the case pored over the opinions for signals of how the court will rule if and when it reaches the bigger question. Jordan Lorence, who argued the case for the Alliance Defense Fund, said Kennard seemed to express a little inclination to side with the city. But, he said, “the rest of them were definitely poker-faced.” Jon Eisenberg, an appellate lawyer in the Oakland, Calif., office of Horvitz & Levy who supports the same-sex marriage proponents, took hope from Kennard’s language. In one passage, she wrote, “individuals in loving same-sex relationships have waited years, sometimes several decades, for a chance to wed, yearning to obtain the public validation that only marriage can give.” Eisenberg also saw some promise in the various opinions’ citation to Perez v. Sharp, 32 Cal.2d 711, the 1948 miscegenation case that same-sex proponents have used as an analogy. Still, he said, “I wouldn’t read too much into it.” But Grodin saw the 5-2 vote on voiding the existing unions as an ominous sign for proponents of same-sex marriage. “It’s not a result that the court was compelled to reach,” Grodin said, adding that Werdegar and Kennard made forceful arguments against it. “It would seem that if the justices were strongly of the view that ultimately they were going to hold the statute invalid, they wouldn’t have done what they did.” Dennis Maio, an appellate specialist at Reed Smith who spent two decades at the court as a research attorney, said he saw no hints as to how the court would rule on the constitutional question. But he doesn’t like the city’s chances. “It would be a tough row to hoe to say that the equal protection clause of the California Constitution requires extending the benefit of marriage” to same-sex couples, he said. Thursday’s decision came six months to the day after San Francisco began issuing marriage licenses to same-sex couples. City officials claimed the state Constitution required it, despite state laws limiting marriage to a man and a woman. Writing for the majority in Lockyer v. City and County of San Francisco, S122923, and Lewis v. Alfaro, S122865, George wrote that, subject to a few exceptions that didn’t apply to this situation, “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.” George emphasized at the outset that the opinion addresses “an important but relatively narrow legal issue.” “Our decision in this case is not intended, and should not be interpreted, to reflect any view on [the broader constitutional] issue.” Far from just a case on marriage, George wrote, Thursday’s opinion deals with “a fundamental question that lies at the heart of our political system: the role of the rule of law in a society.” He suggested that gay rights advocates would be upset if the tables were turned and a local official were to ignore a new state law that will increase domestic partner benefits next year. George’s opinion said there is no California case that suggests a local executive official charged with a ministerial duty “has been granted judicial or quasi-judicial power by the California Constitution.” To test the law, George suggested that the city should have denied a same-sex couple’s request for a marriage license, then advised the couple to challenge the denial in court. That method was used in Perez v. Sharp, the anti-miscegenation case, as well as in same-sex marriage cases recently litigated in other states, George noted. “The city cannot point to any judicial decision that has held a statute limiting marriage to a man and a woman unconstitutional under the California or federal Constitution,” George wrote. He also said the city “cannot plausibly claim” that last year’s decision from the U.S. Supreme Court striking down Texas’ sodomy law clearly leads to a conclusion that California’s marriage laws violate the federal constitution. The majority opinion in Lawrence v. Texas, 539 U.S. 558, includes a “very specific disclaimer” that it was not endorsing homosexual relationships, George noted. Attorney General Lockyer said the court’s opinion demonstrated that San Francisco “picked the wrong way” to challenge the state’s marriage laws. “I’m not opposed to same-sex marriages, and I’m a civil rights advocate,” but one sworn to defend the state’s laws, Lockyer said. “If a court says otherwise, then I’ll defend that law.” City Attorney Dennis Herrera said he was disappointed by the decision, but emphasized he did not see it as a reflection on the constitutional fight to come. “As far as I’m concerned, it gives me no feeling one way or the other.” Appellate specialist Eisenberg said he does not believe the court has come to a firm conclusion on the constitutional issue. “Chief Justice George cares very passionately about preserving an orderly system of justice,” Eisenberg said. “They have voided [the marriages] in the interest of order, and avoidance of chaos in legal proceedings.” One thing the court made clear: It doesn’t think much of hyperbole. In a footnote, George chastised the city’s lawyers for an oblique reference to the infamous “I was just following orders” defense from the Nuremberg trials. George quoted a federal case from the District of Columbia: “Plaintiff’s analogy demonstrates primarily that debates and dialogues on public issues have become so debased in recent years that such terms as genocide, war crime, crimes against humanity and the like are bandied about with considerable abandon.” “Hyperbole never helps,” agreed Maio, “because you’re not addressing somebody like in a 1930s movie, where you have a jury and some great orator.” The court hears often from parties that see the sky falling. “If you’ve worked at a court and you’ve seen that two or three times every day, you become jaded.” Editor’s note: For more reactions to the California Supreme Court’s ruling, see Gay Marriage Proponents Look for Silver Lining.

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