Same-sex marriage in California
Same-sex marriage (SSM) rush in
San Francisco, CA 2004-FEB/MAR
Gavin Newsom, the mayor of San Francisco, CA,
directed the county clerk issue "gender neutral" marriage
licenses to gay, bisexual, and lesbian couples. He took this action on
2004-FEB-10. He reasoned that this was a legal act
because the equal protection clause in the state constitution prohibits
discrimination on personal matters. The text of his letter follows:
"Upon taking the Oath of Office, becoming the Mayor of the City and
County of San Francisco, I swore to uphold the Constitution of the State of
California. Article I, Section 7, subdivision (a) of the California Constitution
provides that '[a] person may not be . . . denied equal protection of the laws.'
The California courts have interpreted the equal protection clause of the
California Constitution to apply to lesbians and gay men and have suggested that
laws that treat homosexuals differently from heterosexuals are suspect. The
California courts have also stated that discrimination against gay men and
lesbians is invidious. The California courts have held that gender
discrimination is suspect and invidious as well. The Supreme Courts in other
states have held that equal protection provisions in their state constitutions
prohibit discrimination against gay men and lesbians with respect to the rights
and obligations flowing from marriage. It is my belief that these decisions are
persuasive and that the California Constitution similarly prohibits such
"Pursuant to my sworn duty to uphold the California Constitution,
including specifically its equal protection clause, I request that you
determine what changes should be made to the forms and documents used to
apply for and issue marriage licenses in order to provide marriage
licenses on a non-discriminatory basis, without regard to gender or
sexual orientation." 1
The mayor's action may have been triggered by
the National Freedom to Marry Day, which has been celebrated annually
on FEB-12 throughout the U.S. since at least 1998. According to Lambda
"National Freedom to Marry Day --
February 12th -- is a time to call attention to the ever-growing support
for ending discrimination in marriage. Currently, same-sex couples can
not enter into a civil marriage, and are therefore denied access to
thousands of rights, responsibilities, and protections that are provided
by the government. Linking the themes of equality and love, as we
remember Abraham Lincoln's birthday and Valentine's Day, NFMD is a great
chance to engage and educate allies about the importance of marriage
The response by same-sex couples:
On FEB-12, many dozens of gay and lesbian couples immediately applied for
and received the very first marriage licenses ever knowingly issued in the
U.S. to same-sex couples. The city office was hopelessly overloaded. Some
couples were assigned numbers and told to come back the next day.
The county clerk
had not expected to start issuing licenses until the week of FEB-22.
However, the timetable was moved forward when the Campaign for California
Families (CCF) announced that they would file a lawsuit against the city. The
Campaign favors retaining marriages as a special and exclusive right
for opposite-sex couples.
By late afternoon on FEB-12, the clerk's office had issued 95 marriage
licenses to same-sex partners, of whom 87 were married on the spot. City
employees volunteered their time over the weekend and on FEB-16 -- President's
Day -- to help meet the rush of applicants. On Sunday, FEB-15, 487 couples were
married, bringing the total to over 1,600. On Monday, FEB-16, 750 same-sex wedding licenses were issued. By FEB-17, over
2,000 same-sex couples had been married in San Francisco during quick civil
ceremonies. One source said "almost 2,400;" another said "2,500;
a third said "2,464."
The constitutionality of the city's action was always in doubt, because it
violated state marriage legislation and Proposition 22 which prohibit same-sex
marriage. In 2004-AUG, the Supreme Court
ruled that the marriage licenses are worthless, and the subsequent marriages are
Seeking two injunctions:
Normally, legal conflicts are handled by a trial. However, in emergencies,
where the plaintiff can prove that irreparable harm is being done, judges can
issue an injunction to require or prevent an action, pending a final decision by
On the morning of FEB-17, San Francisco County Superior Court Judge Ronald
Quidachay refused to hear the request for an emergency
injunction initiated by Liberty Counsel, on behalf of their client, the Campaign for California Families.
Mathew Staver of Liberty Counsel said: "Those who received the marriage
licenses need to know that they are worthless. We are confident that they will
be invalidated as soon as a judge is able to issue an order."
asked that an injunction both stop further marriages and nullify those already
made. Judge Quidachay explained that the group had amended their complaint
against the city earlier in the day and had not given the city the required 24
hour advance notice. He said that he would delay his decision until at
On FEB-20, he ruled that the plaintiffs had "...not made a showing of
imminent, irreparable harm." to themselves or society if same-sex
marriages proceeded until the two sides could return to court in a few
weeks. He agreed to a request by all of the participants that the two cases
be combined into one.
The Proposition 22 Legal Defense and Education Fund
and the Alliance Defense Fund (ADF), who also oppose same-sex
marriage, made an independent appeal to San Francisco
County Superior Court Judge, James Warren. He told the ADF that they
would likely succeed eventually. However, he rejected their request for an
injunction because of a punctuation error. He said: "I am not trying to be petty
here, but it is a big deal. ... That semicolon is a big deal." The
plaintiffs requested that the city be ordered to "cease and desist issuing
marriage licenses to and/or solemnizing marriages of same-sex couples; to show cause
before this court." Judge Warren said: "The way you've written this it
has a semicolon where it should have the word 'or.' I don't have the authority
to issue it under these circumstances." The plaintiffs also asked that
the 2,464, weddings that had been performed between FEB-12 and FEB-17 be voided.
The judge issued a non-binding cease-and-desist order to the city, and told city
officials to return on MAR-29 to explain their legal position.
Peter Ragone, a spokesperson for the mayor, said that city would continue to
issue licenses unless an injunction was approved. Mayor Newsom said that if this
were to happen, the city will pursue a constitutional challenge through
As expected, the State of California has announced that it will refuse to
register marriages of same-sex couples.
On FEB-19, the city filed its own lawsuit against the State of California
Legal Status of the marriages:
The voters in California passed Proposition 22 by a margin of
about 6 to 4 in 2000-MAR. It reads "Only marriage between a man
and a woman is valid or recognized in California." Groups opposed to
same-sex marriage assume that this clause is legally binding. In addition,
the California Family Code states that
marriage is a "civil contract between a man and a
woman." Randy Thomasson, executive director of the
Campaign for California Families called the marriages a "sham."
He said: "These unlawful certificates are not worth the paper they are
printed on...If the mayor can't read
the law, we're hoping a judge can read it for him."
City Attorney Dennis Herrera indicated that Proposition 22 and the
California law cited above conflicts with the equal protection clause in the
state's constitution. He said: "What trumps any proposition is the
California Constitution." He added that his office "will be fully
prepared to win" the case.
Both sides had decided to appeal any decision to the California Supreme
Demand for the mayor's arrest:
The American Family Association Center for Law and Policy -- a
fundamentalist Christian legal defense group -- has claimed that Mayor Newsom "not
only violated civil law, but also criminal law." They cite Section 115
of California's penal code which "prohibits the knowing procurement of any
false or forged instrument to be filed or recorded in any public office."
The group has written to Governor Arnold Schwarzenegger and Attorney General
Bill Lockyer, demanding that the mayor be immediately arrested and charged. They
wrote, in part: "In light of these alarming developments, we call upon you as
the people©s Governor of the State of California to immediately call for the
arrest of Mayor Newsom and his removal from office. We also ask that you move to
arrest and remove from office all other city officials participating in the
issuance of the falsified licenses and bogus ceremonies."
The section carries a maximum sentence of three years for each of the
approximately 2,500 marriage licenses issued by FEB-17. If the mayor were to
receive a 7,500 year sentence, he would never again see the light of day.
Comments about the city's action:
Mayor Gavin Newsom said he was overwhelmed by the thousands of same-sex
couples who had come to San Francsico to marry. He said: "In hindsight,
you say, 'Of course we should have expected it,' but to be honest, I didn't
expect people to come from as far away as New York and South
Carolina...."We've got people coming from ... all over the country to
celebrate their relationship."
- Janice Alden, a lesbian, was waiting in line to
be married on FEB-17. She said: "We want the rights straight people are
- Jon Davidson, Senior Counsel for Lambda Legal
said: "The courts see that there's no need to stop what's happening in
San Francisco right now. Clearly, there's no emergency here, and nobody is
being harmed by these marriages. But this is just the beginning of our fight
on behalf of these married couples and others who have yet to marry. The
city is trying to protect people's constitutional rights, and we will defend
that vigorously in court. We'll be back in court in the weeks and months
ahead to preserve these marriages and make sure every couple who wants and
needs the protections that a marriage license provides will be able to get
- Virginia Garcia, 40, married her partner of
14 years, Sheila Sernovitz, 50. She commented that the emphasis has now
shifted from denying same-sex couples the right to marry, to actually
voiding the marriage of a just-married couple. "Even people who are
anti-gay marriage might shift their thinking now and realize it's most
harmful to take something away when someone already has it."
- Guillermo Guerra, who married his partner of
eight years, said: "There is a part that doesn't feel romantic at
all, but obviously it feels historic."
County Assessor and Recorder Mabel Teng, whose signature makes the
marriage certificate official, said to same-sex couples waiting in line
for licenses: "I want to thank you for bringing so much joy and love
to City Hall. For those of you who tied a knot, congratulations. May you
have a lifetime of happiness together."
James Parker of Mobile, AL, who had just married his partner of five
years, Eric Oliver, said he was not worried that their marriage
certificate would be voided. He said: "If it doesn't stick this time,
it will -- eventually....It was the best feeling you could ever have."
Rev. Dr. Karen Oliveto, a United Methodist Church minister,
said: "This is family values at its best! The church should be
supporting legal marriage for gay and lesbian couples."
- On 2004-FEB-18, a group of San Francisco liberal and mainline clergy
issued a press statement in support of Mayor Newsom for his stand on
equal rights for same-sex couples.
Referring to the rejection of an emergency injunction by the two
Superior Court judges, Chief Deputy City Attorney Therese Stewart said:
"We consider today's ruling a victory. Both judges really recognized
that there's nobody hurt by allowing gay couples to get married."
A conservative Christian assessment of the 2004 Valentine Day events:
On 2004-FEB-18, CovenantNews.com, a fundamentalist Christian news
source, summarized the events in San Francisco as follows:
"Sodomites were racing to be 'married' in San Francisco after
reprobate judges blocked two separate attempts by law abiding citizens
to immediately stop the lewd and lascivious behavior. The reprobates,
judge Ronald Quidachay and judge James Warren, outraged citizens by
refusing to issue immediate injunctions blocking the city's corrupt and
lawless Mayor, Gavin Newsom, and his staff, from issuing 'certificates'
to sex criminals. Sodomites celebrated Newsom's debauchery, as perverts
from across the nation lined up outside city hall for the sixth straight
day to receive a 'license' to engage in sexual crimes and
We cite this statement in order to show the degree of hatred prevalent among
some of the most extreme fundamentalist Christians towards loving, committed
California Supreme Court suspended same-sex marriages
in the state
Mabel Teng, city assessor for San Francisco, ordered that same-sex
marriage licenses be stopped on 2004-MAR-11. According to the Campaign
for California Families, a socially conservative group, there were 4,037
marriage licenses issued to same-sex couples during the 29 days after the
window temporarily opened. 16 Her action was in response to an
interim stay by the California Supreme Court which ordered the city to stop
performing such marriages.
No court in California had ruled on the constitutionality of same-sex
marriages. However, the Supreme Court ordered that city officials prove why
they believe that they "have not exceeded their authority" in issuing such
Michael Duffey, an attorney, married his partner of 10 years, Larry
Schodts in one of the last marriages performed before the ban. He said:
"We're happy -- but we're very sorry and very upset for the people in line
Mayor Gavin Newsom who first authorized same-sex marriages on FEB-12 is
happy with the developments. He said: "I'm pleased that the process is
working as well as it's working. We had hoped to get to the Supreme
Court. We're now going to be making oral arguments, making our case,
in front of the Supreme Court."
Also on MAR-11, President Bush told the National Association of
Evangelicals Convention in Colorado via satellite from the White House
that he "will defend the sanctity of marriage against activist courts and
local officials who want to redefine marriage. "The union of a man and woman
is the most enduring human institution, honored and encouraged in cultures
and by every religious faith. Government, by recognizing and protecting
marriage, serves the interests of all. It is for that reason I support a
constitutional amendment to protect marriage as the union of a man and a
There were two lawsuits initiated by religious conservatives against the
city seeking to halt the same-sex marriages and a third lawsuit by the city
against the state for not registering the marriages. All three were
combined into a single case. 15
State Supreme Court
forcibly nullifies over 4,000 marriages:
The California Supreme Court ruled
unanimously on 2004-AUG-12 that the city had acted improperly when it
started issuing marriage licenses to same-sex couples earlier in 2004.
They ruled only on a narrow legal matter: whether the city had the legal
authority to contravene the state legislation and Proposition 22 which
prohibit same-sex marriage. Chief Justice Ronald George wrote: "Local
officials in San Francisco exceeded their authority by taking official
action in violation of applicable statutory provisions" which regulate
marriage in the state. In a separate decision, the court decided by a vote
of 5 to 2 to nullify the over 4,000 marriages which had been performed
between FEB-12 and MAR-11. This may have been the largest series of marriage
annulments in the history of the U.S. Chief Justice George wrote: "The
same-sex marriages authorized by the officials are void and of no legal
effect." About a dozen same-sex couples waited on the steps of the
Supreme Court building in San Francisco to hear the decision. Some wore
wedding dresses and tuxedos, apparently planning to obtain licenses and to
marry if the decision was in their favor. Some cried after the decision was
read. One of the couples present were Del Martin and Phyllis Lyon. They
receive the first marriage license issued to a same-sex couple on FEB-12.
Lyon said: "Del is 83 years old and I am 79. After being together for
more than 50 years, it is a terrible blow to have the rights and protections
of marriage taken away from us."
The court did not rule on the larger issue:
whether the existing marriage legislation and Proposition 22, which
prohibits same-sex marriage, conflicts with the state Constitution, which
grants fundamental rights to all citizens in the state. If a conflict is
found to exist, then the legislation and Proposition may be declared
unconstitutional by the courts. Briefs on a lawsuit which will clarify this
potential conflict will be heard before a lower court in 2004-SEP. The
Supreme Court said that it was not signaling its views on that case in its
AUG-12 decision. 17
References (in chronological order):
- "San Francisco's Mayor Letter re: Marriage
Licenses," Find Law, 2004-FEB-10, at:
- "National Freedom to Marry Day," Lambda
Legal, undated, at:
- National Freedom to Marry Day logos are
- "Nearly 100 same-sex couples marry in San
Francisco. Organization asks court to invalidate marriage licenses,"
Associated Press, 2004-FEB-13, at:
Oliver Poole, "Gay
couples marry as city defies law," news.telegraph.co.uk, 2004-FEB-14,
David Kravets and Lisa Leff "Judge leaves
San Francisco gay marriage intact for now," Associated Press,
"US judge considers gay marriage," The Australian, 2004-FEB-17,
David Kravets and Lisa Leff, "Gays
and lesbians keep marrying in San Francisco as two judges decline to
intervene," Associated Press, 2004-FEB-17, at:
Mark Worrall, "Two
Judges Delay Gay Marriage Rulings -- Marriages To Continue," 365Gay.com,
- Mark Worrall, "Lawyer Demands SF Mayor's
Arrest," 365Gay.com, 2004-FEB-17, at:
- "More gays, lesbians marry on eve of court
hearing. Injunction request Tuesday could halt stream of newlyweds,"
Associated Press, 2004-FEB-17, at:
- "City to continue same-sex weddings. San
Francisco to await court ruling. Judge declines to issue halt order,"
Associated Press, Toronto Star, 2004-FEB-18, Page A14.
- "Debauchery in San Francisco. Lewd Behavior to
Continue as Reprobate Judges
Refuse to Uphold Criminal Law Throughout the Land," CovenantNews.com,
2004-FEB-18. This is a temporary listing at:
It is changed daily.
- Harriet Chiang, "Gay weddings clear 2nd
hurdle. Both sides return to court March 29," San Francisco Chronicle,
- "California court halts same-sex marriages,"
CNN.com, 2004-MAR-12, at:
- "Protect Marriage
for a Man and a Woman; Oppose 1967,"
Campaign for California Families," at:
- "Court annuls gay unions. California judges
rule same-sex marriages void. Decision affects 4,000 couples who wed this
year," Reuters, Associated Press, 2004-AUG-12.
Copyright ¬© 2004 & 2008 by Ontario Consultants on Religious
Originally written: 2004-FEB-17
Latest update: 2008-JUN-25
Author: B.A. Robinson