City Attorney’s Constitutional Challenge to Discriminatory Marriage Statutes Being Pursued in ‘Separate, Complementary’ Action in S.F. Superior Court
City Attorney Dennis Herrera today filed briefs in two cases before the California Supreme Court arguing that San Francisco officials were within their rights and duties to issue marriage licenses to same-sex couples based on the City’s determination that existing statutes banning such unions were unconstitutional. The briefs came in response to the high court’s “order to show cause” last week, which directed Herrera to demonstrate why Mayor Gavin Newsom and County Clerk Nancy Alfaro did not exceed their authority in issuing the licenses prior to a judicial finding that California Family Code sections 300, 301, 308.5, and 355 did not pass constitutional muster.
In its March 11 orders in the matters of Lockyer v. City & County of San Francisco (S122923) and Lewis v. Alfaro (S122865), the Supreme Court invited arguments that were “limited to the legal question whether respondents are exceeding or acting outside the scope of their authority.” The high court specified that it would not entertain arguments in the two cases on larger questions involving the constitutionality of same-sex marriage, but nonetheless invited the filing of a separate action in trial court “raising a substantive constitutional challenge to the current marriage statutes.”
Within hours of the high court’s decision last week, Herrera filed just such a complaint for declaratory relief with the San Francisco Superior Court, which seeks a judicial finding that state statutes restricting marriage rights to opposite-sex couples violate the California Constitution’s equal protection clause, due process clause and privacy guarantees. Herrera’s constitutional challenge mirrors a previous cross-complaint for declaratory relief in two trial court cases that were subsequently stayed by the Supreme Court in its March 11 orders.
“Today we’ve made the strongest, most vigorous defense possible of the administrative authority of Mayor Newsom and County Clerk Alfaro in issuing marriage licenses to same-sex couples,” Herrera said. “At the same time, my office remains vigilant in our efforts to secure equal marriage rights for gay and lesbian couples in a separate, complementary legal action in Superior Court. With our original complaint filed last week, San Francisco seeks an unequivocal declaration from the court that state provisions prohibiting marriage between same-sex couples are unconstitutional.”
At a separate procedural hearing on Herrera’s constitutional challenge in San Francisco Superior Court earlier today, Judge Ronald Quidachay heard an emergency motion to intervene by in the matter of City and County of San Francisco v. State of California by the Alliance Defense Fund, a Scottsdale, Ariz.-based foundation committed to the “legal defense and advocacy of religious freedom, the sanctity of human life, and traditional family values,” according to its Web site. ADF’s motion was denied by Judge Quidachay.
The cases before the California Supreme Court are Lockyer v. City & County of San Francisco (Case No. S122923) and Lewis v. Alfaro (Case No. S122865). The constitutional challenge pending in San Francisco Superior Court is City and County of San Francisco v. State of California (S.F. Superior Court Case No. 429539).
The City’s Supreme Court briefs will be available this afternoon at 3:00 p.m. PST in Adobe Acrobat PDF at the City Attorney’s Web site at http:www.sfgov.org/cityattorney/. The City Attorney will not host a press conference regarding the filings today.