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San Francisco�California Attorney General Bill Lockyer’s decision to go directly to the state Supreme Court to defend California’s definition of marriage won’t likely bring an immediate end to same-sex weddings in San Francisco, experts on the court and the issue say. They said the court’s justices would probably see no urgency and would instead want to see the record developed further in trial or appellate courts. “They prefer these issues come up fully litigated in a lower court, with some factual rulings,” said Gerald Uelmen, a professor at Santa Clara University School of Law. But if the issue eventually reaches the state justices, some advocates predict that the court, with its generally moderate to progressive record on civil rights, will find that the California Constitution’s equal protection clause allows gays and lesbians to marry. They point all the way back to 1948′s Perez v. Sharp, 32 Cal.2d 711, the first ruling by any appellate court in the country to strike down laws against interracial marriage-19 years earlier than the U.S. Supreme Court. “That’s very strong authority on what the right to marry means,” said Jon Davidson, senior counsel in the Los Angeles office of New York-based Lambda Legal Defense and Education Fund. “It talks about marrying the person of your choice.” He and others also say it must be presumed that the justices could be influenced by the court being based in liberal San Francisco, with some gay employees on the payroll. In fact, the justices’ offices face City Hall, where more than 3,000 same-sex couples have wed since Feb. 12. “The court lives in the world,” Uelmen said. “They’re not on some mountain top, and very often that has an impact on how the issues are perceived. “You wouldn’t say they were biased or had any predisposition on the issue,” he added, “but they certainly are aware of how important this issue is to a lot of people they know.” ‘Enormous harm’ showing Lockyer reaffirmed that his office will file an original writ with the state Supreme Court on Feb. 27, challenging the city and county of San Francisco’s decision to issue same-sex marriage licenses in defiance of state law. Paul Fogel, an appellate specialist at Reed Smith, said the justices could issue either an order to show cause or an alternative writ if they believe the petition has arguable merit. He said the petitioner must show that the issue is one of statewide importance, that there are no disputable facts and that there would be enormous or irreparable harm if the marriages are not stopped. Even if the first two factors possibly could be met, Fogel said, the third is problematic for the attorney general. “I certainly don’t see the urgency,” he said. “You usually have to convince the court that the earth is going to be tilted off its axis. “And, of course,” he added, “why wouldn’t a [state] court of appeal be as competent to issue a stay or not?” The California 1st District Court of Appeal has already declined to issue a stay, as have two judges with the San Francisco County Superior Court. Jon Eisenberg, an appellate lawyer in Horvitz & Levy’s Oakland, Calif., office and a former staff attorney for the 1st District, agreed that it’s quite rare for a civil case to bypass the lower courts. He recalled two such cases in which the state Supreme Court issued an opinion, in 1982 and 1989, although Eisenberg acknowledged there could be others. “It happens about once a decade,” he said. There were five writ petitions filed last year to challenge various aspects of the gubernatorial recall election, he said. “And in each of those cases the court in one form or another did not decide the cases on the merits,” said Eisenberg, who worked on one of those petitions.

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