On the other coast, the California Supreme Court has put a temporary halt to the same-sex marriages in San Francisco. Eugene Volokh thinks "the Justices are prepared to hear the Mayor's substantive constitutional argument about why the California Constitution mandates allowing same-sex marriages", but that is not how I read the order nor how the Chronicle explained things. I think the Chronicle explains it well...
The court sidestepped the issue of whether state law, which defines marriage as a union between a man and a woman, is constitutional. Instead, the court will review only the narrower question -- pressed by state Attorney General Bill Lockyer and organizations opposing same-sex marriage -- of whether San Francisco Mayor Gavin Newsom can ignore the state law if he considers it unconstitutional.
The stay doesn't affect the more than 4,000 weddings performed under Newsom's decree since Feb. 12. But those marriages would be nullified, if the court rules that Newsom lacked the authority to defy the law on constitutional grounds.
That depends on whether the city is covered by a 1978 state constitutional provision requiring administrative agencies to follow the law as written until an appellate court declares it unconstitutional. The city contends the constitutional restriction applies only to state agencies -- a position that looks shaky after Thursday's order, according to some veteran court observers.
After Lockyer asked the court to stop the weddings -- touching briefly on the validity of the state law but stressing the narrower issue of the mayor's authority -- City Attorney Dennis Herrera urged the court to look at Newsom's broader constitutional issue if it decided to take up the case.
The court declined Herrera's invitation Thursday and said the validity of the state law could be tested in Superior Court. Within hours, Herrera filed a new suit on the city's behalf, seeking a Superior Court ruling that the marriage law violated the rights of same-sex couples.
So it may be awhile before the California Supreme Court finally looks at the substantive constitutional issue, but when they do it ought to be quite interesting. This is, after all, the same court that ruled (ahead of its time) that interracial marriage prohibitions were unconstitutional in Perez v. Sharp, an important case which I discussed on Wednesday.
UPDATE: By the way, Mayor Newsom did halt the weddings in SF which should put to rest any sort of argument about him being an anarchist or a tyrant. He has followed the rule of law. There is some question about whether the SSM prohibition is constitutional, and there is some argument about whether the mayor is a "state administrative agency" thereby prohibiting him from making independent judgements on constitutionality. He has constantly deferred to the courts in deciding these matters.