Lockyer rejects halt to nuptials
He dismisses governor's demand as a political ploy

State Attorney General Bill Lockyer on Saturday rebuffed Gov. Arnold Schwarzenegger's demand that he force an end to San Francisco's same-sex marriages, calling the directive political rhetoric.

"The governor can direct the Highway Patrol. He can direct the next 'Terminator 4' movie if he chooses. But he can't direct the attorney general in the way he's attempted to do," Lockyer said, adding that Schwarzenegger's written directive "was a statement designed for consumption at the Republican convention."

Faxed on Friday night to the home of a Lockyer aide, the governor wrote: "I hereby direct you to take immediate steps to obtain a definitive judicial resolution of this controversy." The message also said that San Francisco's actions to wed gay couples "present an imminent risk to civil order."

Lockyer called that statement "preposterous" and said it is the kind of "exaggerated, hot rhetoric" that risks stirring people up to commit hate crimes.

He said that he and Schwarzenegger have agreed all along that same-sex marriage is illegal under California law. He said it is his duty to defend the state against a lawsuit by San Francisco that calls the state's prohibition against same-sex marriage unconstitutional. Lockyer said his office will file a response early this week.

By dumping the gay marriage hot potato in Lockyer's lap, Schwarzenegger has managed to ease the concerns of his conservative supporters while still staying well clear of an issue he doesn't really need to get involved in.

Schwarzenegger told Republicans at their state convention in Burlingame Friday that he is opposed to gay marriage, but his letter to Lockyer leaves all the heavy lifting on the issue to the attorney general. The fact that Lockyer is a possible Democratic challenger to Schwarzenegger in 2006 is just a bonus for the Republican governor.

Attacking San Francisco has always been a surefire applause line for the conservative activists who typically fill the seats at Republican conventions, and the governor's assault on same-sex marriage brought the crowd to its feet Friday night. On Saturday, the GOP Senate candidates also used the stage to bash Newsom and the city.

"On the issue of civil defiance, San Francisco has to follow the law,'' said Bill Jones, former secretary of state. "It needs to be laid in the lap of the attorney general and he needs to deal with it.''

The tiff at the top between Schwarzenegger and Lockyer serves to clarify the lines of authority in the otherwise messy, often emotional struggle over same-sex marriage, legal experts told The Chronicle on Saturday.

A governor cannot tell an elected attorney general what to do, and neither can he tell a mayor what to do.

"The governor really has very limited authority to do anything in this situation," said Jesse Choper, a constitutional law professor at UC Berkeley's Boalt Hall and the school's former dean. "And the mayor does not report to the governor. The mayor is the chief executive officer of the city and county of San Francisco. He works by himself."

Nor, apparently, can a governor tell a judge what to do. Despite urging from Schwarzenegger, a Superior Court judge decided on Friday not to impose a temporary restraining order on the city to halt the marriages.

Legal experts said Saturday that regardless of the legal outcome in California, the question of whether gays and lesbians may marry someone of their own sex is almost certainly destined for federal court.

If California's Supreme Court ultimately upheld the legality of same-sex marriage, a couple might decide to file a joint tax return, said Joseph Grodin, a former state Supreme Court justice. Or, if the court rejected such marriages, a same-sex couple from Massachusetts might attempt the same thing. (Earlier this year, the Massachusetts Supreme Court upheld same-sex marriages and said the state may issue licenses beginning in May.)

"So if a couple tried to take advantage of the federal law and was rebuffed, then someone may raise the constitutionality of that statue and argue that under the federal Constitution, it is unconstitutional to discriminate," Grodin said.

Under another scenario, Grodin said, the issue might jump to the federal level if another state questioned its obligation to recognize same-sex marriages authorized in California or Massachusetts.

"One way or the other, the issue of gay marriage is likely to reach the U.S. Supreme Court," he said.

Two recent rulings also lend favor to the viability of same-sex marriage, said Vikram Amar, a professor at Hastings College of the Law. One is the ruling by the Massachusetts Supreme Court, he said. And the other is the U.S. Supreme Court's recent ruling that invalidated a Texas law, which said homosexuality was illegal. The high court's ruling made such sodomy laws illegal everywhere, he said.

"The court was clear that that wasn't about marriage," Amar said. "But together, these rulings suggest that both state and federal constitutions have something to say about discriminating against same-sex couples when it comes to marriage."

Looming in the background, Amar said, is the possibility that Congress would propose a constitutional amendment barring same-sex marriage, which would have to be ratified by three quarters of states.

"Then it wouldn't matter what (state law) had to say on the issue," Amar said.

Meanwhile, in San Francisco, Mayor Gavin Newsom said he will continue allowing same-sex marriages until a judge says otherwise.

"I'll respectfully keep moving forward and doing the right thing and stopping the practice of discrimination," said Newsom, as he paused for an event honoring black heritage at Yerba Buena Gardens.

He brushed aside criticism from U.S. Sens. Barbara Boxer and Dianne Feinstein, fellow California Democrats who said last week that Newsom was wrong to defy state law and to force the sticky issue in an election year.

"Next year won't be the best time, and the year after won't be," Newsom said. "There's midyear elections, mayoral elections and governor elections. There will never be the best time. It's the same script."

Newsom said he has received threats but declined to elaborate. Flanking the mayor were a pair of suited body guards not often seen at the mayor's public appearances before the weddings began on Feb. 12.