California Supreme Court Takes Action in Same-Sex Marriage Cases (court press release)

San Francisco-At a conference today, the California Supreme Court took action in two pending cases that challenge the continuing issuance of same-sex marriage licenses in the City and County of San Francisco. (Lockyer v. City & County of S.F., S122923, and Lewis v. Alfaro, S122865.)

By a unanimous vote, the seven-justice court issued an “order to show cause” in each case that directs San Francisco officials to demonstrate why they have not exceeded their authority by issuing marriage licenses to same-sex couples on the basis of their own view that the existing marriage statutes are unconstitutional, before any court has issued a judicial determination on that issue.

The order to show cause is specifically limited to this legal question, and does not include the substantive constitutional challenge to the California marriage statutes themselves. The court indicated that that constitutional issue may be litigated separately in another case that may be filed in superior court.

California’s top court will decide the legal issue involving the authority of local officials after further briefing and oral argument, which will be held during one of the court’s regularly scheduled calendar sessions in either late May or June 2004. The court’s late May calendar will be held during the week of Monday, May 24, in San Francisco, and the June calendar will held June 1-2 in Los Angeles.

California Chief Justice Ronald M. George signed the order, along with Associate Justices Joyce L. Kennard, Marvin R. Baxter, Kathryn M. Werdegar, Ming W. Chin, Janice R. Brown, and Carlos R. Moreno.

The court’s order also provides the following:

§ Interim stay of same-sex marriages: The order directs San Francisco officials, while the cases are pending before the Supreme Court, to enforce the current marriage statutes without regard to the officials’ personal view of the constitutionality of such provisions and to refrain from issuing marriage licenses or certificates not authorized by such provisions. Essentially, this is an interim stay of same-sex marriages, directing the city not to perform such marriages while the cases are pending before the court.

§ Stay of proceedings in pending cases: The order stays all proceedings in the two related cases (now consolidated) that are currently pending before the Superior Court of San Francisco.

§ Constitutional challenge: At the same time, the order expressly states that “[t]his stay does not preclude the filing of a separate action in superior court raising a substantive constitutional challenge to the current marriage statutes.”

§ Deadline for return brief: In an original writ proceeding, once the court issues an order to show cause, the next step is for the respondents in the case to file a “return” brief. Today’s order directs San Francisco officials to file the return on or before Thursday, March 18, 2004.

§ Legal question to be addressed in return brief: The order specifies that the return should be limited to the legal question of whether San Francisco officials are exceeding or acting outside the scope of their authority in refusing to enforce the existing statutory limitations in the marriage statutes in the absence of a judicial determination that such provisions are unconstitutional. The order also states that in addressing this issue, the officials should discuss not only article III, section 3.5 of the California Constitution (the main authority relied upon by the Attorney General in Lockyer and by the petitioners in Lewis) “but any other constitutional or statutory provision or doctrine that may be relevant to the resolution of the foregoing issue.”

§ Deadline for reply brief: After the return brief is filed by the City and County of San Francisco, the petitioners (represented in the separate cases by the Attorney General’s Office and the Alliance Defense Fund) are directed to file a “reply” brief. The order states that a reply is to be filed on or before Thursday, March 25, 2004.

§ Amicus briefs: The order states that anyone who wants to submit an amicus curiae brief (a “friend-of-the-court” brief) may apply to file such a brief, accompanied by the proposed brief, on or before Thursday, March 25, 2004.

§ Replies to amicus briefs: Finally, the order provides that any reply to an amicus curiae brief may be filed on or before Monday, March 29, 2004.

§ Filing of opinion: California’s Constitution requires the court to file its written opinion deciding the cases within 90 days after they are taken under submission following the oral arguments that will take place during the last week of May or the first week of June.

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