City says gays have rights to stay married

WASHINGTON -- The City of San Francisco argued yesterday that same-sex couples who already have been married have a limited constitutional right to stay married that cannot be nullified without giving them a chance to defend that right.

Making legal arguments that could be applied in the future in other states, like Massachusetts which is scheduled to permit gay marriages next month, City Attorney Dennis J. Herrera told the California Supreme Court that a couple, once married, has a ''property right" in that relationship.

That right, he argued, carries with it a guarantee of due process before a gay marriage can be ended by a court. The state, he said, must ''afford notice and an opportunity to be heard" in the same way that an opposite-sex couple would be allowed to defend their right to stay married.

If the state Supreme Court wiped out the more than 4,000 same-sex marriages that have already been performed, under licenses granted by San Francisco's city clerk on Mayor Gavin Newsom's orders, that would be ''a green light for discrimination" against gay and lesbian couples across the state, Herrera contended.

The issue of the continuing validity of gay marriages, once performed, could arise in Massachusetts after such marriages are entered, beginning May 17. Should the Legislature and the state's voters adopt a constitutional amendment to outlaw such marriages, the fate of those already married would become a legal issue, as it now is in California.

The State of California was expected to argue, in a brief due last night, that the state's highest court should undo the same-sex marriages already performed, because state law bans such marriages and thus San Francisco had no legal authority to authorize them with licenses.

That same argument was made yesterday in a brief by the Alliance Defense Fund, a coalition of challengers to gay marriage in the state. If the state court were to leave those marriages intact, the Fund said, that ''would have the deleterious effect of encouraging local officials to disregard the law wherever a local official's view conflicts with long-established state law."

The ban on gay marriages under current California law is facing a challenge in a state trial court in San Francisco, but that issue has not yet reached the state's highest court. Instead, the high court is now reviewing only whether the city had the authority to give licenses to gays couples.

The Supreme Court asked lawyers involved in the dispute to give it advice on whether the court should nullify the marriages performed if it ultimately finds San Francisco's licenses were invalid.

City Attorney Herrera said the state court could not do that unless married gay couples themselves asked it to undo their marriages. There are none in the two cases now pending in the state Supreme Court. The state attorney general has no legal authority to seek an end to an existing marriage, the city lawyer said.

Herrera also urged the Supreme Court not to nullify any gay marriages until after the constitutionality of the state ban is finally settled -- something that may not occur for another year or more.