Attorney General Lockyer Asks State Supreme Court to Resolve Legality of San Francisco Gay Marriages

(SAN FRANCISCO) – Attorney General Bill Lockyer today petitioned the California Supreme Court to resolve the issue of whether San Francisco officials are defying state law by issuing marriage licenses to same-sex couples.

"For almost 30 years, the State of California has defined marriage as a union between a man and a woman," Lockyer said. "The law is clear. Individuals and government entities that object to statutes may work to change them through the legislative or initiative process. But unless an appellate court strikes the law down as unconstitutional, state statutes must be followed and they must be enforced."

In his petition, the Attorney General notes that the City and County of San Francisco has issued thousands of marriage certificates that are not recognized by the State of California. The uncertainty over their validity and the potential for further confusion warrants the immediate intervention by the state's highest court.

The petition requests the court to declare as invalid the same-sex marriage licenses that have been issued by the City and County of San Francisco, and order the City and County of San Francisco to immediately stop issuing new licenses to same-sex couples. The petition adds that the court's direct intervention is necessary because questions about the validity of marriage licenses will affect a variety of government functions and personal rights associated with, for example, public assistance, property ownership, personal debt liability, spousal and child support, inheritance rights, workers compensation benefits and tax liabilities.

Under the California Constitution, Article V, Section 13, the Attorney General has the constitutional duty to see that the laws of the state are uniformly and adequately enforced. The Attorney General has attempted to pay deference to the lower courts and the administrative process in the hope that the matter could be resolved without the Supreme Court's immediate intervention. However, the trial courts have not acted to stop the violation of state law, the First District Court of Appeal has declined to intervene, and there is no indication that the San Francisco City and County Assessor-Recorder will obey a request from the Department of Health Services to cease and desist issuing licenses to same-sex couples.

The petition notes that the Supreme Court can declare invalid licenses issued to same-sex couples and order the City and County of San Francisco to stop issuing new licenses without addressing the constitutional issues raised by the City and County of San Francisco. Nonetheless, the petition urges the Court to resolve the constitutional question in order to eliminate the uncertainty surrounding the validity and effect of licenses already issued by San Francisco officials and the potential harm to those who already have obtained the same-sex marriage licenses.

"(A) definitive resolution by this Court of the fundamental constitutional questions involved would provide much-needed certainty and guidance to lower courts and the public," the petition states.

The Attorney General also asked the court to direct the City and County of San Francisco to refund any fees collected in connection with previously-issued same-sex marriage licenses.

While an original proceeding is pending in the Supreme Court, the court has the authority to stay the proceeding in the two cases previously filed in San Francisco Superior Court against the City and County of San Francisco: Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco et al., and Randy Thomasson et al. v. Gavin Newsom et al.

The court also could transfer the Attorney General's petition to another court for further proceedings. Three is no deadline for the Supreme Court to act on the Attorney General's petition. If the court decides to take the petition and ask the City and County of San Francisco to respond to the Attorney General's petition, the court will issue a briefing schedule to all of the parties establishing deadlines for the requested filings.