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City Attorney Dennis Herrera will lean more on the U.S. Constitution to defend same-sex marriages in state Supreme Court, according to a preview of one brief he plans to file today. The Supreme Court ordered the city to respond no later than today to two petitions challenging the thousands of gay and lesbian marriages the city has been performing since Feb. 12. Attorney General Bill Lockyer filed one, and lawyers from the Alliance Defense Fund, which also has a challenge pending on behalf of different clients in San Francisco Superior Court, filed the other. The city attorney’s office has previously stressed the state constitution, including its equal protection clause, to defend Mayor Gavin Newsom and city officials who initiated the same-sex weddings. Opponents of the marriages have repeatedly argued, citing Article III, Section 3.5 of the state constitution, that city officials must enforce state laws — including those that say marriage is between a man and a woman — until and unless those laws are declared unconstitutional by an appellate court. Herrera has argued before and will argue again today that that section of the constitution does not apply to local officials. But if the court doesn’t buy that, Herrera is going to try invoking the federal constitution and its supremacy clause. In the preview of his brief, Herrera argues that the state family laws violate the equal protection and due process clauses of the federal as well as the state constitution. “Because marriage discrimination violates the United States Constitution, the Supremacy Clause required [the county clerk] to cease such discrimination immediately. No provision of state law, or even of the state constitution, can handcuff [the clerk's] duty or ability to do so,” it says. The city attorney will urge the court not to intervene in the dispute yet, but to first see what happens with a similar battle pending in superior court, the preview says. Herrera will assert that trial courts are better equipped to conduct a trial, hear witness testimony, and rule on evidentiary objections, the preview says. The city intends to present lay and expert testimony that relegating same-sex relationships to inferior status stigmatizes gays, lesbians and their families, promotes harassment and violence, and economically harms them. The Allied Defense Fund, which has urged the Supreme Court to order an immediate halt to the weddings, has expressed a preference in the past to leave the constitutional issue to the lower courts for now, so it too can present evidence. The first hints of what that evidence will be may come today, when the fund plans to file affidavits in Supreme Court supporting its assertions that same-sex marriage harms children as well as the institution itself. Meanwhile, another legal group fighting the marriages has recently asked the Supreme Court for permission to intervene in the attorney general’s petition. That group, Liberty Counsel, argues that the state constitution’s equal protection clause protects individuals, and the city should not be allowed to invoke it as a defense.

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