Legal question about San Francisco gay marriage licenses

Factual Questions
1

This is not intended to be a debate about gay marriage, there are quite enough of those threads already. It’s a purely legal question. I admit that my knowledge of the American legal system is sketchy at best, but I can’t see how it is possible for San Francisco to issue gay marriage licenses, if gay marriage is forbidden in California. How independent are individual cities?

Last I heard is that San Francisco is suing California over this. How is this possible? Doesn’t San Francisco have to follow Californian law? Is San Francisco a body entirely independent of California?

The question is a bit confused and rambling, but I’m sure all ye great people can give me some cogent answers anyway.

2

The mayor of San Fransisco is acting on the idea that the California Constitution’s call for equal treatment under the law overrules the California law that says that marriage can only be between a man and a woman.

This is unusual, since generally judges, not mayors, are the arbiters of the state and Federal Constitution. Anyway, it is being sorted out in the courts now.

3

I’m not sure that it’s all that unusual. Courts don’t generally just jump on laws and declare them unconstitutional. They’ll wait for someone to violate the law, get hauled up before them, and use the question of constitutionality as a defense.

4

The mayor of San Francisco, in an attempt at obtaining positive publicity in his city for being “sympathetic” to the relatively large gay population residing therein, has instructed his administration to issue marriage licenses to any couple who satisfy all requirements other than heterogeneousity. There are two possible results from this:

  1. The licenses are of no value, but lots of great publicity and sympathy for the mayor, who attempts to fight the good fight. I suspect most of the couples getting “married” with such licenses understand the highly likely result that they are not lawfully married.

  2. The courts of the state of California decide that the section of the California Code which limits licenses to heterogeneous couples is a violation of the state’s equal protection mandate in its constitution, and strike that code section down. In that case, in California, at least, the lisences, and the marriages resulting from them, would be valid.

Remember, in all cases where a statute is found to be unconstitutional, someone has done something “illegal,” or contemplates doing something “illegal” and asks for a declaration of the constitutionality of the law to get around threatened or actual enforcement of the law.

Will California’s courts follow the lead of Massachusetts and determine that the law is unconstitutional? In the past, I’d say it was the best state for such a challenge; after sixteen years of Republican governorship (1983-1997), the judiciary of California is somewhat less liberal than its heritage. However, it does tend to march to the beat of its own drum, liberal or not. And it does like being at the forefront of legal thought.

Should the courts decide that the statute prohibiting marriage between couples of the same sex is constitutional, it is certainly possible that someone could obtain an injunction against the City/County of San Francisco prohibiting issuance of such licenses.

A more interesting question is whether issuing such licenses is a violation of state law. I’ll defer that to someone more familiar with the law surrounding intentional issuance of improper certification under colour of authority.

5

Although courts are the final arbiter of what is and isn’t constitutional/legal, they are by no means the only ones. Each governmental agency has both the power and the duty to interpret the laws as best they can in the absence of a court ruling on the subject. As Faldage notes, these rulings don’t appear until someone gets sued or prosecuted.

As for the underlying dispute, zimaane has it right – San Francisco recognizes that California law plainly states that marriage is between a man and a woman. However, California’s legislature is only empowered to pass laws which comport with the California Constitution, and San Francisco believes that California’s Constitution requires that, as long as marriage is available to heterosexual couples, it must also be available to homosexual couples. Therefore, claims S.F., the law limiting marriage to het couples is void because it conflicts with the Calif. Constitution. IMO, the San Francisco government is perfectly empowered to make this determination until the question is answered by the California court system (or until California amends its Constitution to clearly address the question one way or the other).

As to your other questions – San Francisco is neither wholly independant of California law nor wholly independant. S.F. must of course follow state law, but, as noted above, the question of whether the text of California’s breeder-only marriage statute is legally valid under the state Constitution is an open one. If it’s not valid, then it has no force; at the same time, if the California Constitution mandates that gays be permitted to marry, then they must be so permitted, regardless of any other consideration.

–Cliffy

6

Bearing in mind that GQ is the Home of the Factual Answer, I would like a cite for the assertion that the mayor’s actions are motivated by a desire for publicity, to curry favor with the gay community or by anything other than his sincere belief that his action is right and proper.

7

This question can be viewed as a an example of our triparte system of government: the legislature passes the laws, the courts interpret the laws and the executive implements the laws.

In this example (and I don’t really know the law here so I may have details wrong), the California legislature passed a law that said that county executives have the power to issue marrige licenses if all legal requirements are met. Each of the county executives (or the designated staffer in their office) gets to review the qualifications of the people who come in to apply for marriage licenses, intially determine if they meet the requirements, and if they do, issue a license. Typically, this is no big deal, because the staffer will look at the application form, make sure that the parties say they are unmarried, of proper age, etc., and if the forms look acceptable, they issue the license. However, there may be some cases where the executive may have to make judgment calls or further investigate the situation. If someone who thinks he or she should have been granted a license was denied, or someone involved who thinks a license was granted illegally, they can go to the courts to determine whether issuance was proper and what to do about it.

Here, the mayor of San Francisco is considered the county executive because SF is a combined city/county. As such, he has the power to examine license application and to initally determine whether license applicants meet the requirements under law. Here, he made the legal analysis that under the California constitution’s equal protection clause, the requirement that couples be of opposite sex was unconstitutional. Applying that analysis, he decided that he could grant licenses to same sex couples, and did so. Opponents of the practice, as is their right, have sued to challenge the mayor’s executive conduct. The courts will have to first determine whether the equal protection clause means that Prop. 22 and other opposite requirements are unconstitutional, and if so, what to do about the marriage licenses granted (most likely declare them void).

The situation in the Massachusetts <i>Goodrich</i> case came about in a slightly different way. There, Ms. Goodrich and her partner applied for a marriage license and were denied. She then sued to force the local official to grant her a marriage license, and the case worked its way up the ladder of Mass. courts from there.

In short, all of the marriage license granted to same sex couples by San Francisco in the past week (and the marriages performed under them) are in legal limbo until the California courts definatively rule.

8

A reminder that California also passes laws by referendum , or ballot propositions.

The law that marriage is between a man and a woman was passed by such a referendum.

Ballot propositions are passed all the time, and later challenged in court and found to be poorly written or overbroad or otherwise unconstitutional. I’m not opining that this is the case with this law, but it would not suprise me if the courts ruled as such.

9

I’ll try to explain things simply (as this isn’t my area of law, and I couldn’t give you a more concise answer without going to the law library - or wasting my firm’s money on westlaw):

If the laws were passed with the correct procedure within the CA state legislative system, then SF’s issueances of gay marriage certificates will be violative of CA law. So, it’s possible, just unlawful. Depending on how the statute was written, the only recourse for violating the state law may be an injunction (the People of CA (or State of CA, or whatever title the state takes) vs. San Fran (or whatever position is responsible for issuing marriage certificates).

The individual cities can pass legislation for activities done within their jurisdiction, which aren’t violative of county (if it’s possible in the particular state’s hierarchy of laws), state, or federal laws. For instance, the city of SF can pass an ordinance forbidding smoking in the city, but it would likely be struck down (more on this below) if it were somehow a right given in the US Constitution.

San Franciso cannot sue CA, at least not in any manner that I’m aware of (I haven’t been in a courtroom for 6 years (and proud of it)). Sure, SF can probably avail themselves of the Declaratory Judgment Act, but what I’m seeing here is a lack of standing on the part of SF. Perhaps on some tangential argument, SF can say that standing exists b/c it affects the livelihood of the people of their city, but it’s a stretch at best. I haven’t gone through my book of civil procedures, but I think even a Rule 57 requires standing (plus I’m thinking of it’s application incorrectly). Anyway, the point I wanted to make is lack of standing should prevent SF from bringing suit.

What usually happens, as what others have correctly noted, usually someone has to be hauled to court and then the law is argued against constitutionally.

10

Lawboy, the City and County of San Francisco has sued the State of California (or more accurately, made a cross-complaint against the State in the action before Judge Warren) (PDF File of Cross-Complaint here) in which it seeks a declaration that the relevant sections of the California Family Code violate the Equal Protection and Due Process clauses of the California Constitution.

11

San Francisco is a municipal corporation, and as a seperate legal entity can therefore sue anyone it feels like. Just like you and me!

12

lawboy, not only is this essentially incorrect (because you miss the fact that, if the law is unconstitutional, it is void), it was also answered correctly by at least three posters before you. Please be more careful when venturing a legal opinion in GQ.

–Cliffy