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Lockyer v. City and County of San Francisco - S122923 & S122865 (2004)

Lockyer v. City and County of San Francisco - S122923 & S122865 (2004)

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Statutory Scheme Prohibiting Same-Sex Marriage Violates California Constitution
Statutory Scheme Prohibiting Same-Sex Marriage Violates California Constitution

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Categories:Types, Business/Law
Published by: Giovanni Figueroa Rodriguez on Mar 25, 2011
Copyright:Public Domain


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Filed 8/12/04
BILL LOCKYER, as Attorney General, etc., ))Petitioner, )) S122923v. ))CITY AND COUNTY OF )SAN FRANCISCO et al., ))Respondents. )___________________________________ ))BARBARA LEWIS et al., ))Petitioners, )) S122865v. ))NANCY ALFARO, as County Clerk, etc., ))Respondent. )___________________________________ )We assumed jurisdiction in these original writ proceedings to address animportant but relatively narrow legal issue — whether a local executive officialwho is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute isunconstitutional, the official deliberately declines to enforce the statute because heor she determines or is of the opinion that the statute is unconstitutional.
 2In the present case, this legal issue arises out of the refusal of local officialsin the City and County of San Francisco to enforce the provisions of California’smarriage statutes that limit the granting of a marriage license and marriagecertificate only to a couple comprised of a man and a woman.The same legal issue and the same applicable legal principles could comeinto play, however, in a multitude of situations. For example, we would face thesame legal issue if the statute in question were among those that restrict thepossession or require the registration of assault weapons, and a local official,charged with the ministerial duty of enforcing those statutes, refused to apply their provisions because of the official’s view that they violate the Second Amendmentof the federal Constitution. In like manner, the same legal issue would bepresented if the statute were one of the environmental measures that imposerestrictions upon a property owner’s ability to obtain a building permit for adevelopment that interferes with the public’s access to the California coastline,and a local official, charged with the ministerial duty of issuing building permits,refused to apply the statutory limitations because of his or her belief that theyeffect an uncompensated “taking” of property in violation of the just compensationclause of the state or federal Constitution.Indeed, another example might illustrate the point even more clearly: thesame legal issue would arise if the statute at the center of the controversy were therecently enacted provision (operative January 1, 2005) that imposes a ministerialduty upon local officials to accord the same rights and benefits to registereddomestic partners as are granted to spouses (see Fam. Code, § 297.5, added byStats. 2003, ch. 421, § 4)), and a local official — perhaps an officeholder in alocale where domestic partnership rights are unpopular — adopted a policy of refusing to recognize or accord to registered domestic partners the equal treatmentmandated by statute, based solely upon the official’s view (unsupported by any
 3judicial determination) that the statutory provisions granting such rights toregistered domestic partners are unconstitutional because they improperly amendor repeal the provisions of the voter-enacted initiative measure commonly knownas Proposition 22, the California Defense of Marriage Act (Fam. Code, § 308.5)without a confirming vote of the electorate, in violation of article II, section 10,subdivision (c) of the California Constitution.As these various examples demonstrate, although the present proceedingmay be viewed by some as presenting primarily a question of the substantive legalrights of same-sex couples, in actuality the legal issue before us implicates theinterest of all individuals in ensuring that public officials execute their officialduties in a manner that respects the limits of the authority granted to them asofficeholders. In short, the legal question at issue — the scope of the authorityentrusted to our public officials — involves the determination of a fundamentalquestion that lies at the heart of our political system: the role of the rule of law ina society that justly prides itself on being “a government of laws, and not of men”(or women).
 As indicated above, that issue
phrased in the narrow terms presented bythis case
is whether a local executive official, charged with the ministerial duty
The phrase “a government of laws, and not of men” was authored by JohnAdams (Adams, Novanglus Papers, No. 7 (1774), reprinted in 4 Works of JohnAdams (Charles Francis Adams ed. 1851) p. 106), and was included as part of theseparation of powers provision of the initial Massachusetts Constitution adopted in1780. (Mass. Const. (1780) Part The First, art. XXX.) The separation of powersprovision of that state’s Constitution remains unchanged to this day, and reads infull: “In the government of this commonwealth, the legislative department shallnever exercise the executive and judicial powers or either of them; the executiveshall never exercise the legislative and judicial powers, or either of them; thejudicial shall never exercise the legislative and executive powers, or either of them:
to the end it may be a government of laws and not of men
.” (Italics added.)

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