On August 12, 2004, the California Supreme Court voided all of the same-sex marriage licenses issued in San Francisco earlier that year.

The San Francisco marriages were the first chapter in California’s recent gay marriage saga.

It all started on February 10, 2004, when, after prompting by Mayor of the City and County of San Francisco, the county clerk designed a gender-neutral marriage license application and license.

The mayor, Gavin Newsom, said that he was inspired by President George W. Bush’s 2004 State of the Union Address, during which Bush voiced his strong support for outlawing same-sex marriage.

Subsequently, on February 12, the county clerk began issuing marriage licenses to same-sex couples.

Unlike in New York where the practice was recently legalized, same-sex marriages weren’t legally valid at the time.

It didn’t take long for legal challenges to follow.

The next day, two separate lawsuits were filed in San Francisco County Superior Court seeking to halt the city’s issuance of marriage licenses to same-sex couples (both requests for immediate stay were denied).

On February 25, three San Francisco residents filed suit, with their legal help coming from the Arizona-based Alliance Defense Fund, a conservative Christian organization.

Two days later, California Attorney General Bill Lockyer filed suit.

The California Supreme Court consolidated these cases, and issued an order on March 11 asking city officials to show good cause as to why they were issuing same-sex marriage licenses against state law, and directing a stop to the practice in the meantime.

After oral arguments on May 25, the court handed down its ruling.

The long Lockyer v. City and County of San Francisco opinion held that county officials had overstepped their authority in issuing the licenses, and that all of the marriages were void.

Notably, the opinion was careful to avoid the consideration of the constitutionality of same-sex marriage.

San Francisco Mayor Gavin Newsom

Less than four years later, though, the question was addressed anyhow.

In re Marriage Cases, decided in May 2008, was essentially a continuation of Lockyer that sought resolution of the constitutionality questions that the California Supreme Court had skirted four years earlier.

The ruling made two significant holdings.

First, that laws discriminating against sexual orientation are subject to strict scrutiny, the highest level of judicial review.

Second, that laws limiting marriage to heterosexual couples are unconstitutional.

This ruling directly led to the creation of Proposition 8, a ballot proposition and constitutional amendment providing that “only marriage between a man and a woman is valid or recognized in California.”

As many remember, Proposition 8 passed in the 2008 elections, overruling the second holding of In re Marriage Cases (but preserving the first).

Prop 8, of course, immediately saw legal challenges.

The California Supreme Court upheld Prop 8, but a federal court declared it unconstitutional.

Currently, the federal ruling has been stayed pending appeal, so Prop 8 is still in effect.

However, the case is widely believed to eventually land in the U.S. Supreme Court’s docket, and a ruling from the Supreme Court will affect not only California law, but all state law in the country.

If such does eventually become reality, the nation would owe its laws’ change to Mayor Newsom, who initiated the long legal battle seven years ago.

Was this Newsom’s intent?

Regardless of the answer, it’s significant that such a massive national change could be brought about by a single mayor a month into his tenure.

May is Asian American and Pacific Islander Heritage Month.  During the month of May, we’ll be looking at important legal landmarks in U.S. history relating to Asian Americans and Pacific Islanders.

For the first post on Chinese Exclusion, click here.

As discussed last week, Asian Americans faced discrimination almost as soon as they began arriving in the country.

Chinese were the first target of major discrimination, and in addition to the physical restrictions imposed by Chinese Exclusion laws, they were also targeted by economic constraints.

In fact, Article XIX of the California Constitution of 1879 contained provisions that forbade private corporations and local governments from employing Chinese.

As a result, many Chinese employed themselves and opened up their own businesses.

Most prominently were laundry shops, which, by the 1880s, were predominantly run by Chinese owners.

This made it easy for local governments to target the industry, seeking to impose further hardships on Chinese and eventually drive them out of the country.

Many arbitrary regulations were passed, and many of them were struck down as discriminatory by lower state courts.

However, one law reached the U.S. Supreme Court, and its overturning led to one of the most significant advancements in legal civil rights in the nation’s history.

That case is Yick Wo v. Hopkins.

The ordinance, which Yick Wo was in violation of, required that one needed a permit from the city’s Board of Supervisors in order to operate a laundry in a wooden building.

The Board of Supervisors had broad discretion in granting or denying these permits.

At the time, 95% of the city’s laundry shops were operating in wooden buildings, so the ordinance required the majority of shops to apply for permits.

Over 65% of the shops were owned by Chinese, and none of which were granted any permits (and only one woman out of 80 non-Chinese applicants was denied a permit).

The city justified its need for the law on safety concerns, citing the flammability of wood (over stone or metal buildings).

However, the petitioner fired back that the inspection and approval of laundries in wooden buildings had been delegated to fire wardens before the new law went into effect, and that he had never failed a fire safety inspection.

The Supreme Court unanimously found for the petitioner, finding that the ordinance was facially neutral, but discriminatorily applied.

Therefore, the law was a violation of the Equal Protection Clause of the Fourteenth Amendment.

This is the first time the Supreme Court had made such a ruling, but it would be far from the last.

In fact, the case has been cited over 150 times since it was decided.

In addition, it served as the backbone for many overturnings of Deep South racial discrimination laws during the 1950s and 1960s.

More recently, Justice O’Connor’s concurrence in Lawrence v. Texas, the ruling that struck down anti-sodomy laws nationwide, relied on Yick Wo as part of her Equal Protection argument against the law.

Strangely, while the case is widely cited in Constitutional Law texts, the historical circumstances surrounding the case have been lost.

And along with it, the Chinese’s major contribution to Civil Rights.

So while there are many Asian cultural observances during the month of May, people should not overlook the legal milestones reached because of Asian influences.

The current Establishment Clause jurisprudence is anything but simple.

Just look at the recent Catholic League v. San Francisco opinion.

The case dealt with a non-binding resolution made unanimously by the San Francisco Board of Supervisors condemning Cardinal William Levada’s directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

The Catholic League for Religious and Civil Rights, a Catholic advocacy and civil rights organization, along with two Catholic residents of San Francisco, sued the city claiming the resolution violated the Establishment Clause of the U.S. Constitution.

Hot Doc: Catholic League for Civil and Religious Rights v. San Francisco

Source: Westlaw News & Insight – National Litigation

After the lower court ruled for the city and the Catholic League appealed, a fractured en banc opinion was published, addressing the issue of standing in addition to the merits of the case.

Three justices found that the plaintiffs had standing and should prevail on the merits; three judges found that the plaintiffs had standing and should not prevail on the merits; and five judges found that the plaintiffs lacked standing and thus did not reach the merits of the claim.

However, since a majority of the 11 justices found the plaintiffs to have standing, a decision needed to be reached on the case’s merits, which a separate majority, using the Lemon test, found in favor of the city.

The Lemon test, originating in Lemon v. Kurtzman (403 U.S. 602 (U.S. 1971)), gives a three-pronged test for determining whether state action has violated the Establishment Clause.

While the case has been the controlling law on Establishment Clause claims for 40 years, it has been selectively followed in subsequent Supreme Court cases, and heavily criticized by conservative groups, scholars, and justices as being, among other things, anti-religious.

Echoing (indeed, directly citing) much of that sentiment is the Catholic League’s Petition for Writ of Certiorari to the Supreme Court, filed on February 15, 2011.

The petition essentially calls for the Supreme Court to come up with a new test to replace Lemon’s, calling the latter “unworkable” and producing “silly” results.

Perhaps to better drive this point home, the petition asserts that the Lemon test here has found constitutional the “City’s anti-Catholic resolution.”

While a terribly small minority of cases seeking certiorari actually get it (it’s somewhere in the neighborhood of 1.1%), this case, with its constitutional undertones, would seem a likely candidate.

If taken, the Supreme Court could overrule Lemon, affirm it, or simply punt the issue by declaring this circumstance an obscure exception.

What do you think?  Is this case prime SCOTUS fodder?  Was San Francisco being discriminatory in its passing the resolution?  Is Lemon overdue for an overhaul?

For more current “Hot Docs” like this one, plus timely news and analysis of litigation developments around the country, be sure to check out the Westlaw News & Insight – National Litigation website.

The audience got an entertaining view of the client’s perspective from one of the world’s most famous professional bloggers, Heather Armstrong (dooce.com), who was famously fired (or “dooced”) after anonymously blogging about her boss.

“I felt like I had ended my life,” Armstrong told the 270 people in attendance. “I was valedictorian at my school, I graduated with honors from college, and here I was getting fired for doing something really, really dumb.” Her advice to bloggers now? “Be ye not so stupid.”

The session inspired a number of insightful blog posts and articles. Here are a few that caught our eye:

• Slander or Satire? When Does Social Media Cross Legal Lines? (ABA Journal)
• Growing Social Media Use Among Employees Necessitates Employer Response (ABA Now)
• Another Example of Why Your Company Now Needs a Social Media Policy (Connecticut Employment Law Blog)

Attendees also got some expert legal perspective from Marylee Abrams and Kenneth Kunkle, two attorneys who deal with social media in the workplace. Abrams talked about the need for employers to develop social media policies, and Kunkle discussed copyright and trademark concerns stemming from the explosion in social media use.

Oh, and here’s a scary thought: While there are thousands of potential Heather Armstrongs out there, an ABA survey concluded that only about 30 percent of American workplaces have social media policies.

Perhaps Jenny Westlaw knows the secret. At any rate, Holly R., a library manager at a law firm in San Francisco, clearly knows her tall pink birds, like the one that tried to pick Jenny’s pocket at Busch Gardens in Tampa. By correctly answering our What’s Next Trivia question, Holly became the third winner of a $30 Starbucks gift card. Congratulations, Holly!

You may have seen Holly before, although you might not recognize her. She appeared in our San Francisco preview breakfast video as an audience member – and she’s also appeared in studio audiences for The Rosie O’Donnell Show and a recent episode of The Oprah Winfrey Show.

Holly’s on-camera career may not be over yet. “I’m trying to get tickets now to The Ellen DeGeneres Show,” she says. “Maybe if Ellen knew I was a professional audience member, she would send me tickets to go!” Ellen – are you listening?

There’s still time to play the next round of What’s Next Trivia with Johnny & Jenny Westlaw for a chance at $30 in Starbucks gift cards. Here’s what to do:

• Watch  the Johnny & Jenny videos from the fourth week of the tour in Houston, Denver and Dallas.

• Watch any of this week’s videos (from Boston, Chicago and Minneapolis) and wait for the trivia question to pop up at the end (or click on the PARTICIPATE tab to skip ahead).

• Answer a single trivia question about one of the videos. Then type in your name and email address (so we can contact you if you win) and click Submit. That’s it!

One winner will be chosen at random from the entries we receive, so keep following along! (For more information, see the official rules.)

*The Chinese proverb came from Uncle Anthony’s Unabridged Analogies: Quotes & Proverbs for Lawyers and Lecturers, which is available at a 10% discount to Westlaw Insider readers like you!