Menu

S.F. Mayor Defiant in Gay Marriage Licensing

As San Francisco Mayor Gary Newsom (search) continues to say "I do" to gay marriages, many are wondering if he is putting himself too far out on a political limb.

And is his allowance of same-sex matrimony merely an act of civil disobedience or a constitutional violation?

"In the city of San Francisco, what he's doing is really popular. Nothing can be done to the mayor," said Fox News senior judicial analyst Andrew Napolitano. "His heart may be in the right place but he doesn't make the law on marriages, the Legislature does."

"He can no more issue a marriage license than he can a driver's license," Napolitano continued.

"The concept of equal protection is incorporated in both constitutions. But he has taken it on to himself to be judge, jury, Legislature," added Douglas Kmiec, professor of law at Pepperdine University in Malibu, Calif. "In fact, all power has been assumed by Mayor Newsom in California."

But Newsom is defending his actions.

"The fact is, what we're doing is from my perspective, inevitable," Newsom told Fox News.

"I'm so proud of the city. I'm so proud of the staff. They were able to put together an unprecedented effort. We had about 20 to 40 marriage certificates a day and that's a busy day. Now we are literally 300-400 on average."

A Massachusetts court recently ruled that the state's ban on gay marriages was unconstitutional. State lawmakers last week met to try to pass a law enforcing that ruling but to no avail. Since then, several states have introduced and/or passed measures reinforcing their own gay-marriage bans. But San Francisco, a city, took it upon itself to start issuing marriage licenses to gay and lesbian couples.

"I think [Newsom] sort of wanted to grab the prize first," Napolitano said. "Massachusetts is trying to do it lawfully, San Francisco is not."

Newsom maintains he had the legal authority to direct the county clerk to allow same-sex couples to apply for marriage licenses because the California Constitution (search) prohibits discrimination on the basis of sexual orientation.

After two judges on Wednesday declined to immediately end the same-sex wedding spree, Newsom said the city would keep issuing marriage licenses as conservative groups vowed to take their case to higher courts.

"Stated simply, my actions are consistent with California’s Constitution, the highest law of our state," Newsom said in a statement Wednesday. "There is no ambiguity in our constitution when it comes to discrimination. It is prohibited."

But many say Newsom is violating the law, plain and simple.

"This issue that we're dealing with in San Francisco is one that you can disregard whether or not gay is right or wrong but the fact is the city of San Francisco, the mayor, the county clerk are violating state law," said Robert Tyler, an attorney with the Alliance Defense Fund (search), which opposes gay marriages.

Matt Spalding, a fellow at the Heritage Foundation (search) in Washington, said Newsom's actions are undemocratic at the very least.

"You've got a situation where a fundamental definition in society -- the definition of marriage -- is being forced into the courtrooms to be decided by a small minority … going aside and circumventing the whole constitutional process," Spalding said. "This has to do with the fundamental social institution -- the magnitude of this decision should be done in a context which does not exclude popular opinion."

Randy Thomasson, executive director for Campaign for California Families (search) -- also trying to halt the marriages -- said Newsom has ulterior motives for his actions.

"This guy is an activist, he's not a public servant," Thomasson said. "He is doing this because he has an agenda and they're so arrogant in San Francisco, saying 'all America needs to be like us.' They're saying that and they're violating the law."

"If we see mayors hold up their right hand or left hand saying we are going to uphold the law, then Mayor Newsom is a flunkie," Thomasson continued. "The state law says very clearly marriage is between man and a woman" and the penal code says anyone who officiates or allows is punishable by fines, jail time or both.

The attorney general of California can sue the mayor, as can any taxpayer, for not enforcing state law, Napolitano said.

California Gov. Arnold Schwarzenegger even weighed in, opposing the San Francisco goings-on.

"I support all of California's existing laws that provide domestic partnership benefits and protections," Schwarzenegger said. However, he added, "Californians spoke on the issue of same-sex-marriage" when voters approved Proposition 22 (search), the 2000 initiative that defines marriage as between a man and a woman.

"I support that law and encourage San Francisco officials to obey that law," he said.

But some experts say Newsom's flouting of the law may not be too different from what the Massachusetts court recently did.

"I would hope that the California Supreme Court will ultimately vindicate that result, but it may take a few decisions to get to that," Kmiec said. "In Massachusetts, the judiciary decided that it didn't matter what the Commonwealth of Massachusetts had enacted into statute.

"If the judges wanted to go off the reservation, they will," he said.

Fox News' Anita Vogel contributed to this report.