HOUSTON VOICE www.houstonvoice.com
FEBRUARY 20, 2004
Critics liken S.F. mayor to Ala. 10 Commandments' judge
SAN FRANCISCO, continued from Page 1
amendment banning gay marriage, something his aides have told conservative
groups he plans to do soon.
"I have watched carefully what's happening in San Francisco, where licenses
were being issued, even though the law
stales otherwise," Hush said during an
Oval Office session with Tunisian
President Zinc Kl Abidine Ben Ali. "I have
consistently stated that I'll support law to
protect marriage between a man and a
woman. Obviously these events are influencing my decision."
He reiterated his position that marriage
should lie defined as a union between a man
and a woman and added he was "troubled by
activist judges who are defining marriage."
Even the often restrained First Lady,
Laura Bush, who is on a fund-raising tour
for her husband's campaign, weighed in on
the debate and said gay marriages are "a
very, very shocking issue" for some people.
"It's an issue that people want to talk
about and do not want the Massachusetts
Supreme Court, or the mayor of San
Francisco to make their choice for them. I
know that's what the president thinks,"
said Mrs. Bush who did not express her
own opinions about gay marriage.
"I think people ought to have that
opportunity to debate it, to think about it,
to see what the American people really
want to do about the issue," she said.
California Republican Gov. Arnold
Schwarzenegger said in a statement this
week that San Francisco must stop issuing
"Californians spoke on the issue of
same-sex marriage when they overwhelmingly approved California's law that
defines marriage as being between a man
and a woman. I support that law, and I
encourage San Francisco officials to obey
that law," the former actor said.
Schwarzenegger has said he opposes gay
marriage but supports domestic partnerships.
Several socially conservative groups
including the Campaign for California
Families, the Arizona-based Alliance
Defense Fund and the Proposition 22 Legal
Defense & Education Fund filed lawsuits
seeking injunctions against the city.
Judge calls for March hearing
San Francisco Superior Court Judge
James Warren issued an order telling the
city to cease and desist from issuing the
licenses or he would require Newsom and
other city officials agreed to appear at a
hearing on March 29. City officials agreed so
they can continue issuing marriage licenses.
And San Francisco County Superior
Judge Ronald Quidachay said Tuesday
that he was not prepared to rule until
Friday on injunctions brought by the
Campaign for California Families and the
Alliance for Defense Fund.
Jenny Pizer, a senior staff attorney at
Lambda Legal, said that for these groups to
obtain an injunction, they must show they
will suffer irreparable harm if the city
Longtime activists Phyllis Lyon (left) and Del Martm, who have been together for 51 years, were the first gay couple to get married last week at San Francisco's City
Hall, after Mayor Gavin Newsoti (far right) ordered city officials to issue marriage licenses to gay couplees. (Photo by Liz Mangeldsdorf/San Francisco Chronicle)
continues to issue the licenses.
"It's a three-part test that opponents
must win," Pizer said. "First, is there
irreparable harm to the plaintiff?
Secondly, the party has to show they are
likely to win and thirdly, would there be
harm to others? All three must be met."
Mayor Newsom, who ordered the city to
begin issuing the licenses, said the city
would continue marrying gay couples until
a court order stops them. He added that
when a court order prevents future licenses
from being issued, the city would pursue a
constitutional challenge through the courts.
Newsom and gay marriage proponents say
the marriage licenses are legal because of the
California Constitution's equal protection
clause prohibiting discrimination, as well as
state recognition of gays as a protected class.
Mayor may have violated state law
But opponents say the move violates a
successful voter-approved state initiative in
2000 declaring that California only recognizes marriages between one man and one
woman and noted that state law supercedes
city law when it comes to marriage. They
also say that Newsom violated criminal law
as well, citing the California Penal Code in
which section 115 "prohibits the knowing
procurement of any false or forged instrument to be filed or recorded in any public
office, making such an act a felony punishable by up to three years in prison."
Pizer said what will be determined in
the cases is whether or not Newsom has
the authority to "read the Constitution and
make a determination that there's a
statute in violation of the Constitution."
"It's a little too early to predict how
both cases will address that issue," Pizer
said. "The question does shift to what the
[California] Constitution requires. That
would then effect questions of whether
this was an abuse of the executive power
or not or a trivial abuse or a serious abuse.
"The right wing is claiming that this is
anarchy and making quite inflated assertions.
Civilization in California is percolating just
fine. What has happened is that Mayor
Newsom has pointed out that the boogie monster has no clothes. The assertion that society
will tumble into disarray is obviously hollow."
Brian Fahling, a senior trial attorney
and policy analyst for the American Family
Association Center for Law & Policy said
Mayor Newsom is "actively undertaking to
violate the law in a pretty profound way"
"Because of the laws that exist in
California, you have an effort to call something marriage when it is in fact not,"
Fahling said. "I think we can safely conclude that they are attempting to further a
political agenda through this defiance."
Act of civil disobedience?
Some gay activists have asserted that
Newsom is engaging in civil disobedience,
much like African-Americans did in the 1960s
at the height of the civil rights movement.
Rev. Jesse L. Jackson, a civil rights leader, said while he supports "equal protection under the law" for gay couples, he condemned equating the gay marriage cause
with the civil rights movement.
"The comparison with slavery is a
stretch in that some slave masters were gay,
in that gays were never called three-fifths
human in the Constitution ... and in that
they did not require the Voting Rights Act
to have the rights to vote," Jackson said.
"What is the same is that we all as citizens
have the right to choose our partners."
He stopped short of endorsing gay
Fahling said the situation in San
Francisco was not similar to the civil
rights movement because a city official
was breaking the law.
"A civil magistrate can never engage in
civil disobedience," Fahling said. "He's a
man under authority. To the degree he
finds himself unable to operate under the
present regime, he should resign and work
to create change as a citizen. But it is a
huge problem when you have people
charged with upholding the law being
charged with violating it."
Fahling said that Newsom was no better than another public official openly
defying law, former Alabama Supreme
Court Judge Roy Moore who blatantly
defied state law, ignored a federal order
and placed a monument to the Ten
Commandments in the lobby of the
Alabama Supreme Court. Moore was
stripped of his chief justice position for
defying a federal judge's order to remove
the Ten Commandments monument.
"There's the disintegration of law in this
country and the most recent evidence of
this fact is Judge Roy Moore." Fahling said.
"While I felt that the Alabama Supreme
Court was wrong, he had no authority or
business defying that federal court order."
John Aravosis, the co-chair of
DontAmend.com, a grassroots lobbying
effort dedicated to defeating a federal marriage amendment, said the comparison
between Newsom and Roy Moore was
wrong and that civil disobedience is appropriate in civil rights struggles.
"And sometimes it is appropriate to be a
good German," Aravosis said mockingly
"People have a right to stand up in a
non-violent way. If the right wing wants to
talk about fairness, they have to explain
Judge Moore. They didn't seem to have a
problem when he took the law into his own
hands and placed that Ten
Commandments monument in the
[Alabama] Supreme Court."
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