San Francisco, Same-Sex Marriage, and Civil Disobedience

15 years ago, Mayor Gavin Newsom directed the city-county clerk to issue same-sex marriage licenses in San Francisco. What followed changed the country forever.

A gay couple holding up their wedding bands.

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It’s easy to think of individuals committing acts of civil obedience: The conscientious objectors that fled to Canada to avoid the draft. Student protestors staging sit-ins. Bike riders deliberately clogging traffic to protest racial injustice. But it’s harder to think of incidents where a city itself creates an act of civil disobedience. One notable example occurred 15 years ago this week when the city of San Francisco began to issue marriage licenses to same-sex couples. The action, though contrary to state law, would set the table for later challenges and a landmark Supreme Court decision.

In 2004, newly elected San Francisco mayor Gavin Newsom decided to direct the city-county clerk to begin issuing the licenses. Newsom’s decision came as a reaction George W. Bush’s State of the Union address, in which the president had espoused the possibility of an amendment to the U.S. Constitution to prevent same-sex marriage. With the state of Massachusetts set to allow same-sex marriage to begin in May 2004, Newsom invoked the equal protection clause of California’s state constitution as a reason for the city to begin issuing the licenses as well.

The city made the licenses available beginning February 12, and by the 13th, lawsuits were filed in opposition. On February 19, the city sued the state of California on the grounds that the statute that defined marriage in the state was unconstitutional. The next day, the California Supreme Court refused the stay on licenses that had been requested by the February 12 filings, meaning that licenses could continue to be issued. The city of San Jose waded into the fight on March 9; their city council voted 8–1 to recognize marriages of city employees performed in other jurisdictions (such as San Francisco, which is roughly 90 minutes away).

The availability of the licenses precipitated a rush of couples who wanted to get married, knowing that their window might only exist for a limited time. Reporting from that week indicates that around 900 couples were married in the first three days that licenses became available. Couples from other parts of California, and other states, descended on the area to try to get their ceremonies officiated. From February 12 to March 11, 4,000 licenses went to same-sex couples, some of whom waited in line for 12 hours. Among the more well-known couples to be wed were then-California State Assemblywoman Jackie Goldberg and Sharon Sticker; celebrity Rosie O’Donnell and her then-partner Kelli Carpenter; cartoonist Alison Bechdel and then-girlfriend Amy Rubin; filmmakers P. David Ebersole and Todd Hughes; and screenwriter David Michael Barrett and Mark Peters.

Though the issue had already drawn national attention, it had also begun to shift to the national political stage. By late February, President George W. Bush continued to publicly support an amendment to ban same-sex marriage. Some viewed this move as a pre-emptive strike to draw a line against his presumptive opponent in the next presidential election; that was Senator John Kerry, who coincidentally hailed from the other state at issue: Massachusetts. On March 11, the Supreme Court of California halted the issuance of the licenses; Mayor Newsom agreed to stop while the courts took up the issue.

Cases would travel through various levels of the court on their way to a final decision that August. On August 12, 2004, the Supreme Court of California issued a unanimous ruling that the city had violated state law by issuing the licenses. An additional decision, a 5–2 vote in the case of Lockyer v. The City and County of San Francisco, voided all of the same-sex marriages that had been performed.

The fallout continued for years. After Lockyer, the city and county of San Francisco again filed suit, leading to a 2008 Supreme Court of California decision that denying the licenses to same-sex couples was, in fact, unconstitutional. That decision, and the cases surrounding it, paved the way for multiple cases to follow. When the Obergefell v. Hodges case made its way to the U.S. Supreme Court, it didn’t represent a single couple; it arrived as a bundled case involving six lower court cases that had included 16 same-sex couples from four states. On June 26, 2015, the U.S. Supreme Court reached a 5–4 decision that all 50 states had to grant same-sex marriages and recognize those marriages in other states.

Today, Newsom is the governor of California. He served as mayor of San Francisco until 2011, and was the lieutenant governor of the state from 2011 until took the oath for the higher office in 2019. Despite the ultimate success of the Obergefell v. Hodges case, some challenges have arisen in court and from politicians who wish to overturn the decision. However, polls conducted by Pew Research Center and others show a consistent growth in support for same-sex marriage among the American people, with a 2018 Gallup poll demonstrating that as much of 67 percent of the population approves.


Feature Image: Same-Sex Marriage (Shutterstock)

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