Traditional-family defenders sought an immediate halt to San Francisco’s unprecedented issuance of marriage licenses to same-sex couples, but judges in two separate cases delayed taking action today, citing court procedures.

Same-sex couples line up outside San Francisco City Hall Monday. (Photo: San Jose Mercury News)

At the second hearing, this afternoon, San Francisco Superior Court Judge James Warren told plaintiffs their argument likely would succeed but rejected their petition because of a misplaced semicolon.

The Proposition 22 Legal Defense and Education Fund asked the judge to order the city to “cease and desist issuing marriage licenses to and/or solemnizing marriages of same-sex couples; to show cause before this court.”

Warren said the petition should have an “or” where the semicolon is placed.

“I am not trying to be petty here, but it is a big deal,” he told the group’s attorneys, concluding, “I don’t have the authority to issue it under these circumstances.”

Warren eventually issued a non-binding cease and desist order which said if the city did not comply it must return for a March 29 hearing to show cause for non-compliance, said the Arizona-based Alliance Defense Fund, which is representing the Prop 22 group.

This morning, San Francisco Superior Court Judge Ronald Quidachay rescheduled hearing until Friday a motion to stop the licenses filed on behalf of the pro-family lobby group Campaign for California Families.

Quidachay said the plaintiffs had not given the city enough notice to obtain an emergency injunction.

The petition, argued by the public-interest firms Lively & Ackerman and Liberty Counsel, contended Mayor Gavin Newsom and Clerk Nancy Alfaro had no authority to redefine marriage in direct conflict with California law.

Liberty Counsel immediately appealed to the California Appeals Court for a writ of mandamus, which asks a court to require a government official to obey clearly-established law.

The court is being asked to set an immediate hearing.

“This is not an issue that can be swept aside and ignored,” said Mathew Staver, president and general counsel of Liberty Counsel. “… We are confident that the appeals court will understand the urgency of the situation.”

With the clerk’s office kept open over the weekend, more than 2,400 same-sex couples have been issued licenses since Thursday, when the city became the site of the first officially sanctioned “gay marriage” in American history.

Newsom argues homosexuals should be able to marry based on the California Constitution’s guarantee of equal protection under the law. The 36-year-old mayor, who began his term Jan. 8, insists he merely is fulfilling his duty.

In their brief in the CCF case, lawyers for the city argued local government agencies can advance their own interpretations of the state constitution. They also reject the family lobby group’s claim that a court stay is necessary to avoid irreparable harm, contending same-sex couples “denied the right to marry face far greater harm than the petitioners here.”

In its case, the Alliance Defense Fund argues the statutes under the family code specify marriage is reserved to a man and a woman, and ADF chief counsel Benjamin Bull points out no court has declared that section to be unconstitutional.

“Officials charged with solemnizing marriages must enforce those statutes on constitutional grounds when issuing marriage licenses, regardless of what [Mayor] Newsom orders them to do,” said Bull.

San Francisco Mayor Gavin Newsom (Photo:

A Christian legal group has urged California Gov. Arnold Schwarzenegger to arrest Newsom for his defiance of state law. The American Family Association Center for Law and Policy called his move “an arrogant stunt” proving “the radical homosexual movement will trample the rights of all who stand in their way.”

The AFA’s law center wrote Schwarzenegger and Attorney General Bill Lockyer Friday insisting the mayor not only violated civil law, but criminal law as well.

The letter cites California’s penal code Section 115, which “prohibits the knowing procurement of any false or forged instrument to be filed or recorded in any public office.”

The penalty for the felony, the letter notes, is up to three years in prison. The AFA says this means three years for each false certificate issued.

Tomorrow, Wyoming’s Senate Judiciary Committee will consider a bill that would bar recognition of same-sex marriages from other states.

Yesterday the Georgia Senate passed a constitutional amendment to ban same-sex marriage. But the measure might not make it on the November ballot because of opposition in the state House, where it needs 120 out of 180 votes.

Republican state Sen. Mike Crotts said the events in San Francisco and the recent high-court ruling in Massachusetts moved Georgia lawmakers to action, the Atlanta Journal-Constitution reported.

“They forced it to the surface in Massachusetts. They forced it to the surface in California,” Crotts said. “Let the people be heard over the voices of the judges.”

On Feb. 4, the Massachusetts Supreme Judicial Court said in an advisory opinion same-sex couples are entitled to marriage and not an alternative, such as Vermont-style civil unions. The high court decided Nov. 18 homosexual couples are legally entitled to wed under the state constitution. However, the 4-3 November ruling stopped short of declaring homosexual couples should be granted the license, ordering the state legislature to come up with a solution by mid-May.

The Massachusetts Legislature, however, suspended debate this month after the narrow defeat of three amendments during two days of tense negotiations. The lawmakers will reconvene the constitutional convention March 11.

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