Cart Before the Horse in San Francisco?

This is a partial transcript of "Special Report with Brit Hume", Feb. 19, that has been edited for clarity.

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BRIT HUME, HOST: For more now on the California gay marriage (search) dispute, we turn to lawyer Edward Lazarus who practices in the Golden State and who has written extensively on legal issues, including a book on the Supreme Court.

Edward Lazarus, welcome to you.


HUME: Tell me now where you think this goes. First of all, let's look at the terms of Proposition 22 (search), which was passed in a referendum in California, and simply states, "Only marriage between a man and a woman is valid or recognized in California." Now that is not an amendment to the state Constitution that is simply something that the voters placed in the California code.

So, I suppose that it is theoretically or legally possible that the courts would find that that is overridden by, as the mayor of San Francisco argues, the state's Constitution's Equal protection Clause. Am I right about that?

LAZARUS: Absolutely right, Brit. The way it works is that the Constitution of the state is the highest level of law. And the statute, which is established by that proposition, is a lower level.

So, the state Constitution trumps the statute if, in fact, at the end of the day, it will be the California Supreme Court. I think no other court ultimately will decide this. If that California Supreme Court decided, much like the Massachusetts court did in Massachusetts, that a ban on gay marriage is as unconstitutional under the Equal Protection and Due Process Clauses that it would be null and void and gay marriage would be allowed.

HUME: So, what is likely the next step here? I was surprised -- a little bit surprised that no court in San Francisco was willing to issue, I guess, what's called a temporary restraining order, at least to stop the onslaught of marriages until an issue could be legally decided. What is going on there in your judgment?

LAZARUS: Well, there are two factors for a temporary restraining order, Brit. One factor is, is the side that wants the restraining orders going to win?

But the other factor, and it's equally important, is whether irreparable harm is going to be caused. And if you are a court in this situation, even if you thought that what the mayor of San Francisco was doing was unlawful, you might say, well, there is no irreparable harm because we can always just rescind these marriage contracts and everything will be back the way it was beforehand. So that may be what's in the minds of the courts when they don't issue any injunction.

HUME: Now, there isn't anything -- so, it is the case then, that these marriages that go forward with these marriage licenses, that they -- that there's no problem about getting them invalidated. In other words, undoing them is legally easy. Is that correct

LAZARUS: That's right. A court could say that the mayor of San Francisco never had the authority to order this, that these are null and void and could rescind those.

Now, of course, that create-- the more marriages there are, the more difficult it may be for a state judge to feel comfortable doing that. But as a legal matter, there is no difficulty about it.

HUME: Now the State Department of Health and Human Services, I think it's called, is the one involved in this business about the form.


HUME: Is -- is that likely to be proven an obstacle here or is that simply a temporary footnote in all of this?

LAZARUS: Well, that may very well be an obstacle. This is such an unprecedented situation. Usually what happens is exactly what's happening today. Which is if you want to change a law or have it nullified because you think it is unconstitutional, you go in the way the city of San Francisco is now doing, and you seek a declaration saying this is unconstitutional.

HUME: In other words, you send your lawyer...

LAZARUS: It's very...

HUME: ... you don't start granting licenses or doing the thing that is forbidden. You go to court and get the law overturned and then you do it, right?

LAZARUS: Correct. Here the cart has been put before the horse. The mayor, in an act of, you know, sort of quasi-civil disobedience, has basically said, look, I have an obligation to the Constitution of California. I read the California Constitution as saying that that ballot initiative is unconstitutional. So I'm going to let this go forward.

But now you have a little bit of a bureaucratic battle even within the city of San Francisco. So, it's gotten terribly complicated.

HUME: Well, I mean the state is saying that the forms they used have been altered and under state regulations you can't alter the forms and have the things be valid. So as a matter of law at the moment, are these marriages and licenses valid or not?

LAZARUS: I don't think until a court steps in and sort this is out, we're really going to know the answer to that question in any absolute sense. And as a matter of fact, just to throw out one more tidbit, state agencies in California are specifically prohibited by the state Constitution from doing what the mayor has done. So, you have a battle of different constitutional provisions on top of everything else.

HUME: Ed Lazarus, thanks very much for being with us.

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