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When Attorney General Bill Lockyer asked the California Supreme Court on Friday to declare San Francisco’s same-sex marriage licenses invalid, his strategy departed on at least one point from that of other lawyers opposing the licenses. Lockyer wants California’s highest court to address whether state family laws that say marriage is between a man and a woman are constitutional. San Francisco City Attorney Dennis Herrera has argued that they are not. Two legal groups that have been fighting the same-sex marriage licenses for weeks would prefer that the Supreme Court steer clear of the constitutional question, at least for now. Some of those lawyers would prefer to build a trial record on the constitutional question. But Lockyer wants the Supreme Court to weigh in now. “A definitive resolution by this court of the fundamental constitutional questions involved would provide much needed certainty and guidance to lower courts and the public,” says a petition Lockyer filed Friday. The Supreme Court ordered the city attorney to file a response no later than Friday. Mayor Gavin Newsom directed San Francisco officials to begin handing out same-sex marriage licenses Feb. 12. Opponents to the marriages immediately filed two challenges in San Francisco Superior Court. The Arizona-based Alliance Defense Fund filed Proposition 22 Legal Defense and Education Fund v. San Francisco, 503943; and Florida-based Liberty Counsel filed Thomasson v. Newsom, 428794. Though the now-consolidated cases continue to wend their way through superior court, opponents have been stymied in their efforts to get the trial court or a panel from the First District Court of Appeal to immediately halt the gay and lesbian marriages. Lockyer’s was the second petition filed last week asking the Supreme Court to order the city to stop issuing the same-sex marriage licenses immediately. The Alliance Defense Fund filed the first, Lewis v. Alfaro, S122865, Wednesday on behalf of three San Francisco residents. The fund’s lawyers want the court to rule in their favor based on Article III, Section 3.5 of the state constitution, which they argue prohibits the county clerk from disregarding a statute unless an appellate court has ruled it unconstitutional. However, their petition suggests they don’t want the Supreme Court to debate the constitutionality of the family laws that say marriage is between a man and a woman just yet. “The constitutionality of the marriage laws is an issue best left to full development in the lower courts,” says a footnote in papers filed in Lewis. The city attorney raised that constitutional argument in a cross-complaint in superior court. Benjamin Bull of the Alliance Defense Fund concedes the Supreme Court is likely to take up the city’s constitutional argument “sooner or later,” but says his lawyers would prefer to develop a record on that question at the trial level. If the Supreme Court broaches the discussion now, it would consider the question in the abstract, Bull said, and his lawyers hope to present evidence on the question. “There’s excellent social science research and evidence supporting the distinction between same genders and opposite genders, that the statute rests upon,” Bull said. But the attorney general says the issues surrounding the constitutional challenge to the family laws are purely legal, not factual, in papers Lockyer filed Friday. “There is no need for the development of a factual record,” says Lockyer’s brief. The uncertainty surrounding the validity and effect of the same-sex marriage licenses, and the potential harm to the people who got them, warrant immediate resolution, Lockyer argues in Lockyer v. San Francisco, S122923. Herrera previewed his response to Lewis in a Feb. 26 letter to the Supreme Court, indicating it would include assertions that family laws violate the state constitution’s equal protection and due process clauses. And in a statement late Friday, Herrera asserted the Supreme Court should wait until lower courts have acted. “The judicial process should allow the high court to reach the merits for these questions when it may do so with the aid of lower court findings � rather than in the absence of lower court findings.” Liberty Counsel, the legal group representing plaintiffs in Thomasson, planned Friday to file papers in the Supreme Court on the heels of Lockyer’s petition, asking to intervene in the attorney general’s action, lawyer Mathew Staver said Friday, though before seeing Lockyer’s petition. Liberty Counsel planned to request an immediate stay to halt the same-sex marriages, Staver said, and to argue that based on California case law, the city shouldn’t be allowed to raise an equal protection defense. Lockyer has been under fire for days from some opponents of the same-sex marriage licenses, who have accused him of not moving swiftly nor aggressively enough to stop the city from defying state law. Some of his recent comments about his commitment to civil rights, and his support for domestic partnerships and civil union statutes, only fed critics’ speculation that Lockyer’s heart won’t be in this fight. “We can’t rely on the attorney general to do his job, frankly,” the Alliance Defense Fund’s Robert Tyler said Wednesday, shortly after filing the Lewis petition with the Supreme Court. “He has an obligation to the people, yet he doesn’t really believe what the people believe.” For his part, Lockyer has emphasized that he’s duty-bound to defend the family laws. “I have no discretion in this matter,” Lockyer said at a press conference Tuesday. Until an appellate court rules a state law unconstitutional, he said, “we are obligated to defend state law.”

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