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Same-sex marriage in California

Same-sex marriage (SSM) rush in
San Francisco, CA 2004-FEB/MAR

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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 discrimination."

"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 Legal:

"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 equality." 2


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 not valid.

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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 the court.

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."

Liberty Counsel 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 least FEB-20.

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 the courts.

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:

Opinions differed:

  • 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." 1
  • 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 Court.

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 entitled to."
  • 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 one."
  • 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,, 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 abomination." 13

We cite this statement in order to show the degree of hatred prevalent among some of the most extreme fundamentalist Christians towards loving, committed same-sex couples.

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 licenses.

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 behind us."

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 woman.

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):

  1. "San Francisco's Mayor Letter re: Marriage Licenses," Find Law, 2004-FEB-10, at:
  2. "National Freedom to Marry Day," Lambda Legal, undated, at:
  3. National Freedom to Marry Day logos are available at:
  4. "Nearly 100 same-sex couples marry in San Francisco. Organization asks court to invalidate marriage licenses," Associated Press, 2004-FEB-13, at:
  5. Oliver Poole, "Gay couples marry as city defies law,", 2004-FEB-14, at:
  6. David Kravets and Lisa Leff "Judge leaves San Francisco gay marriage intact for now," Associated Press, 2004-FEB-17, at:
  7. "US judge considers gay marriage," The Australian, 2004-FEB-17, at:
  8. 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:
  9. Mark Worrall, "Two Judges Delay Gay Marriage Rulings -- Marriages To Continue,", 2004-FEB-17, at:
  10. Mark Worrall, "Lawyer Demands SF Mayor's Arrest,", 2004-FEB-17, at:
  11. "More gays, lesbians marry on eve of court hearing. Injunction request Tuesday could halt stream of newlyweds," Associated Press, 2004-FEB-17, at:
  12. "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.
  13. "Debauchery in San Francisco. Lewd Behavior to Continue as Reprobate Judges
    Refuse to Uphold Criminal Law Throughout the Land,
    ", 2004-FEB-18. This is a temporary listing at: It is changed daily.
  14. Harriet Chiang, "Gay weddings clear 2nd hurdle. Both sides return to court March 29," San Francisco Chronicle, 2004-FEB-21, at:
  15. "California court halts same-sex marriages,", 2004-MAR-12, at:
  16. "Protect Marriage for a Man and a Woman; Oppose 1967," Campaign for California Families," at:
  17. "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.

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Copyright © 2004 & 2008 by Ontario Consultants on Religious Tolerance
Originally written: 2004-FEB-17
Latest update: 2008-JUN-25
Author: B.A. Robinson

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