By Bob Roehr
SAN FRANCISCO, CA – Wedding bells will continue to ring for gays and lesbians in San Francisco, at least until the next court date, set for March 16. More than 3,000 couples have tied the knot since City Hall began issuing marriage licenses to same-sex couples on February 12.
The outpouring of happy couples, many with their children, many who waited outside for hours in the rain, has been splashed prominently across the national media. Local outlets across the country have competed to tell the stories of gay and lesbian couples who journeyed to San Francisco to marry for personal and legal reasons.
"I think the parade of couples on TV and in the newspapers and magazines is what is going to change the public attitude about marriage of same-sex couples," said Jon Davidson, an attorney with Lambda Legal, one of the groups supporting marriage rights for gays. "That is what is going to take. Before, this was an abstract issue."
As a sign of normalcy, the county clerk's office ended its marathon walk-in sessions and on February 23 began to conduct the ceremonies only through appointments made ahead of time during normal business hours. The fee for the license is $82 and the fee for a ceremony through the clerk's office is $62.
On February 17, two separate state judges rejected pleas by right wing opponents to issue an immediate injunction to stop the marriages; they set hearing dates for filing additional briefs and continuing the cases.
An injunction is issued only when the party seeking it demonstrates both that it is likely to win the case and that it will suffer irreparable harm if the action is allowed to continue. The pair of judges said the antigay lawyers had failed to demonstrate appreciable harm in allowing gays to continue to wed.
"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," Davidson said.
On February 19, San Francisco City Attorney Dennis Herrera took the offensive, going back to court seeking a declaratory judgment that the state law defining marriage as between a man and a woman violates the California state constitution by discriminating against gays and lesbians.
"I took an oath literally to support the constitution, and that's what I'm doing," said San Francisco Mayor Gavin Newsom. "The issue here is simple: the state's constitution does not permit discrimination at all, anywhere, period."
That will be added to the legal mix and all of the lawsuits are likely to be consolidated into a single case. Attorneys for the social conservatives have sought to have Judge James L. Warren removed from the case, though they have not stated why. The jurist, outed in 2002 as being gay, is the grandson of former California Governor and Chief Justice of the U.S. Supreme Court Earl Warren.
Mayor Newsom performed his third wedding ceremony on February 20, marrying Carole Migden and Christina Arguedas, her partner of 20 years. Migden has a long history in elective office, having served as a San Francisco Supervisor and represented the city in the state legislature prior to her current position as chair of the powerful State Board of Equalization.
California Governor Arnold Schwarzenegger finally weighed in on the issue with a dramatic performance timed to the Republican state convention. He denounced the lawlessness of Mayor Newsom in issuing the licenses and passed the buck to Attorney General Bill Lockyer, ordering him "to take immediate steps to obtain a definitive judicial resolution of this controversy."
Lockyer, a Democrat, asserted the independence of his office. "I sort of resent it when Arnold plays Conan the Barbarian to the right wing and directs me to do something. He doesn't have the authority to do that." Nonetheless, Lockyer declared that he and the Governor were on the same page in believing that the marriages were illegal, and he vowed to defend the state in court.
Appearing on Meet the Press, Schwarzenegger rejected the need to call in California State Police to arrest city officials conducting the marriages. Interestingly, he twice refused the opportunity to pledge to veto a bill that would legalize gay marriage, saying, "I don't deal with hypotheticals." He reiterated his support for domestic partnership rights.
Openly gay Congressman Barney Frank (D-Massachusetts) expressed his own reservations about what has been unfolding in San Francisco. "I was sorry to see this thing go forward," he told the Associated Press. He called it "a diversion" that promotes the notion that unpopular laws can be broken or ignored. "If we go forward in Massachusetts and get same-sex marriage on the books, it's going to be binding and incontestable."
The liberal California Senator Barbara Boxer, up for reelection this year, said she opposed changing the law to allow for same-sex marriages.
"I think some of our friends may need a little consciousness-raising," came the testy reply of San Francisco's openly gay state Assemblyman Mark Leno. He is backing a gay marriage measure in the legislature.
He dismissed talk of a political backlash. "There is no perfect time," Leno told the Bay City News, "We're in the midst of a very exciting, major social change in this country. The question is, do we want to miss the boat completely or do we want to be part of it?"
Many gay political leaders were maddened by Frank's comments but they are hesitant to publicly take on the powerful Congressman. A notable exception was transgender activist Phyllis Randolph Frye. "Barney, you are becoming even more irrelevant," she wrote in a widely distributed email.
"I can just see Ole Barne back on the bus in the 60's with Rosa Parks, saying 'Not now, Rosa, those conservative folks might not like it unless you come back to the back of the bus with me. We might have a backlash. We might have to walk.'"
Frye noted Frank's unwillingness to include transgender persons under the Employment Non-Discrimination Act.
