Steve Sachs Duke


Tuesday, February 17, 2004


Wedding Suit: A friend recently sent me an article on San Francisco's gay marriage policy, which has been marrying people like crazy while the lawsuit wends its way through the courts. Regardless of one's views on gay marriage, it's impossible not to be impressed by the stories of couples who have stayed committed to each other for 20, 30, 40 years -- commitments that many straight couples have been unable to match, even with the protections of marriage and the social recognition of their union.

What puzzles me, though, is the lawsuit seeking an injunction against the city. Who would have standing to contest the city's decision? Even if it were an open-and-shut case that California law doesn't recognize gay marriage--the voters having recently adopted a proposition to that effect--wouldn't that just mean that the marriages themselves would be void if they were ever challenged? Who could reasonably claim to have been injured by the city's refusal to enforce the law?

According to the complaint (PDF), if the marriages are not stopped, "Plaintiffs will lose their fundamental right to have their vote in favor of Proposition 22 afforded proper treatment." But do individuals really have a legal claim to the government's treating their votes properly? If California adopted a ballot proposition concerning littering in state parks, and a park ranger deliberately ignored evidence of someone littering, could any California resident sue on the grounds that his or her vote was not being "afforded proper treatment"? (Alternatively, assume the ranger was the one doing the littering, and was thereby personally violating the law; could there be an individual cause of action to make him or her stop?)

The complaint also notes that public funds will be expended without authority, which might be a better claim. But aren't the couples themselves paying all expenses?

The assessor-recorder, Mabel S. Teng, said her office, responsible for issuing the $83 licenses, performed 825 weddings on Monday, bringing the number of same-sex marriages to about 2,425 since the city opened the gates to gay couples on Thursday.

Even if no additional public funds are being used, it might be possible to argue that the public is injured by demands on public officials' time, as they conduct activities outside the scope of their office. (Certainly a straight couple would have a hard time getting in the door for a marriage license this weekend.) But I don't know enough about civil procedure to tell whether this really rises to a justiciable claim -- or, if it isn't one, how citizens could ever contest the "harmless" illegal actions of their public officials.

(On a more cynical note, by my calculations, the 2,425 marriages have brought in $201,275 in added revenue in just four days. And I doubt the city would offer a refund if the marriages are declared illegal. So one can only imagine the closed-room discussions in Mayor Newsom's office last week: "Well, folks, I know we're facing a big budget shortfall, but Mabel here had an idea...")




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