Aug 20, 2004  |  By: JOE CREA  | COMMENTS     

Following the California Supreme Court ruling last week that invalidated the marriages of nearly 4,000 same-sex couples, activists are now setting their sights on a lawsuit in the lower courts challenging the constitutionality of California’s gay marriage ban.

The court ruled unanimously that San Francisco Mayor Gavin Newsom exceeded his authority when he ordered City Hall to begin issuing marriage licenses to gay couples earlier this year, since voters approved legislation in March 2000 defining marriage as a union between a man and woman.

The ruling did not address the constitutionality of the state’s prohibition of same-sex marriage.

Jennifer Pizer, senior staff attorney in Lambda Legal’s Los Angeles-based Western regional office, said that several cases challenging the validity of California’s same-sex marriage ban have now been consolidated. She said the lawsuit is unlikely to reach the California Supreme Court for at least a year or more.

In a related development, California Assemblyman Mark Leno (D-San Francisco), who chairs the Lesbian, Gay, Bisexual & Transgender Legislative Caucus, has authored a bill that would prohibit the state from denying marriage licenses to gays. He predicted the Marriage License Non Discrimination Act (AB 1967) will be on the governor’s desk this time next year.

Comparisons to Roy Moore
The unanimous decision last week finally addressed the question of whether or not a civil magistrate has the authority to interpret the state’s constitution.

Newsom’s controversial decision to grant marriage licenses to gays prompted comparisons to the actions of former Alabama Chief Justice Roy Moore, who last year defied a federal court order demanding that he remove a Ten Commandments monument he installed in the state’s Supreme Court. Alabama’s Court of the Judiciary removed Moore last year for his refusal to comply with the order.

“Newsom and his cohorts in lawbreaking were not, however, the first elected officials in recent months to engage in such flagrant lawlessness,” wrote Tara Ross, a writer and an attorney from Texas in a column for the American Enterprise. “The first elected official to defy the law in such a manner was Alabama Supreme Court Chief Justice Roy Moore.”

Gay Congressman Barney Frank (D-Mass.) who criticized Newsom’s decision in February said that while comparisons between Newsom and Moore were unwarranted, Newsom’s actions did more harm than good for marriage rights for gay men and lesbians.

“Moore kept defying the courts but once the court ordered Newsom to stop, he stopped,” Frank said. “But [Newsom’s actions] are a problem. In the history of civil rights, whether it be race, gender or GLBT rights, we have traditionally done better in the courts than the ballot box. Newsom should have filed a lawsuit to get the right to do the marriages. Ignoring the law did us more harm than good.”

Bryon Williams, a syndicated columnist and pastor, said comparing Newsom to Moore is “apples and oranges.”

“Does [Newsom] have the authority to interpret the state constitution in the manner he did? No,” Williams said. “That’s what the courts are for. But the point is, you need to have someone do something radical to wake up the status quo. Yeah, he broke the law, but the question as I see it … there are just laws and unjust laws. Did he break a just law or unjust law?”

Chris Barron, political director for the Log Cabin Republicans, a gay GOP group, said neither Newsom nor Moore “showed any respect for the rule of law and neither actions were helpful to what they wanted to have had happen.”

“While what Newsom did was emotionally moving, it provided gas for the fire on the far right,” Barron said. “I think his heart was in the right place but I think there were other ways to do this.”