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California Attorney General Bill Lockyer could find himself in a sticky political situation as the fight over San Francisco’s gay marriages moves beyond the city’s borders. On Feb. 12, San Francisco removed gender references from marriage licenses, thus allowing same-sex couples to tie the knot. City officials argue state law banning marriages by gay and lesbian couples is unconstitutional. If the city maintains its stance, Lockyer will be obligated to defend the state and enforce the law. That could mean Lockyer, a liberal Democrat, could find himself out of step with his progressive ideology. “The attorney general’s job is to sup-port state statutes even when he doesn’t like them,” says political law expert Chip Nielsen, a partner in the Marin County, Calif., office of Nielsen, Merksamer, Parrinello, Mueller & Naylor. “It would be inappropriate for the attorney general to not get involved in a case where the constitutionality of a state statute was being decided.” At issue is Proposition 22, passed by California voters in 2000. It reiterated older state law that limited marriage to between a man and woman, and it prohibited California from recognizing same-sex marriage performed outside the state. By issuing marriage licenses, San Francisco has effectively declared that the voter-approved law violates California’s constitution. For now, the fight is contained within San Francisco Superior Court, and Lockyer’s office says it’s only monitoring the situation. But things could quickly escalate if appeals are filed over the court’s decisions on injunctions and other matters. Lockyer opposed Prop. 22, and though he hasn’t taken a position on gay marriage per se, “he supports extending all of the available legal rights and responsibilities pertaining to marriage to couples who are in a committed relationship,” says his spokeswoman, Hallye Jordan. Once at the appellate level, Lockyer’s office would have to enter the case if the constitutionality of a state statute is in question. But legal experts say he’d be obliged to defend Prop. 22, which might not sit well with some of his supporters. “Clearly he’s going to make people upset, but when told it’s the [obligation of the] office, that should make them feel better,” says Robert Stern, president of the nonprofit, nonpartisan Center for Governmental Studies in Los Angeles. Tony Quinn, a political analyst who co-edits the nonpartisan California Target Book, agrees. “He would be in serious trouble if he didn’t support a law passed by voters,” Quinn says. “He could be impeached or recalled if he didn’t uphold the law.” It wouldn’t be the first time the AG’s role put Lockyer at odds with his politics, something that seems to come with the territory. Jordan says there have been “numerous instances” when Lockyer defended laws when politically he might have been on the other side. Such a situation arose just last year, when Lockyer spoke out against the campaign to recall then-Gov. Gray Davis. After that, his office had to defend the validity of the recall election against numerous court challenges. Even if the case doesn’t reach an appellate court, Lockyer could still be sucked in. A lower court or one of the litigants could ask him for a legal opinion, or another state agency, such as the Department of Health Services — which regulates marriages — could ask him to get involved, Jordan says. Even before San Francisco began issuing licenses on Feb. 12, Jordan says, Lockyer’s lawyers were already monitoring how lawmakers and courts were wrestling with the controversy in Massachusetts. Jeff Chorney is a reporter at The Recorder, the American Lawyer Media newspaper in San Francisco, where this article first appeared.

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