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When Therese Stewart left her partnership at Howard, Rice, Nemerovski, Canady, Falk & Rabkin, for the San Francisco city attorney’s office, she didn’t expect that in less than two years she’d be leading the city in a courtroom battle to legalize same-sex marriage in California. At the time, she thought she might get to work on amicus curiae briefs for gay rights cases, she says now. “But I didn’t envision this.” Since the city began issuing same-sex marriage licenses Feb. 12, City Attorney Dennis Herrera’s office has filed two challenges to state laws that say marriage is between a man and a woman and defended city officials in numerous other suits. As Herrera’s lead lawyer on those cases, Stewart is set to argue on the city’s behalf before the California Supreme Court in May or June. Given the volume of filings over the past six weeks, Stewart, 47, says she has sometimes felt “under siege.” Herrera hired Stewart shortly after taking office in early 2002. As chief deputy city attorney, she oversees all of the office’s litigation and earns $177,000 a year — about a third of what she’d been making as a partner at Howard, Rice. “You could see that in her heart this is where she wanted to be, in public service,” said Howard, Rice partner Kenneth Hausman, one of her mentors at the firm. PAVING THE WAY Stewart earned her bachelor’s degree with a mix of geology, music theory and philosophy courses at Cornell University in 1978. After graduating from Boalt Hall School of Law in 1981, she clerked for Eleventh Circuit U.S. Court of Appeals Judge Phyllis Kravitch, then joined Howard, Rice. In her earliest days at the firm, Stewart hadn’t quite concluded she was a lesbian, she says. She credits Jay Spears, an openly gay partner who died in the 1980s, for paving the way for her and others to come out at work. His photo sits on a shelf in her large office at City Hall. Another photo, this one on the wall, shows Stewart dog-sledding deep in Alaskan snow — a passion she abandoned in the early 1990s because it was “very intense and competitive,” too much like her job. Still, her former hobby illustrates her style, says Nanci Clarence of San Francisco’s Clarence & Dyer, who’s worked alongside and opposite Stewart on cases. “It’s intense, it requires insight, and it’s competitive. And it requires incredible dedication and care. And she brings those qualities to everything she does.” Even as a business litigator, Stewart found avenues to advocate for gay and lesbian rights, among other causes. In the 1980s, she served brief stints on the boards of the Bay Area Lawyers for Individual Freedom bar association, and the Lesbian Rights Project, now the National Center for Lesbian Rights. At the Bar Association of San Francisco, she served on a committee for the hiring and retention of ethnic minorities, then co-chaired a similar committee for gay men and lesbians. In 1997 she sparked a relationship with then-City Attorney Louise Renne’s office, offering her pro bono help to defend a new city benefits law that required companies contracting with San Francisco to provide the same benefits to their employees’ domestic partners as to their spouses. After Renne decided not to run for re-election, Herrera called Stewart to ask for her endorsement. Though Stewart knew others backing him, she insisted on getting to know Herrera a little better before pledging her support. Over a cup of coffee, they were mutually impressed. Herrera, who told Stewart he planned to continue Renne’s tradition of proactive litigation, says, “We just immediately clicked, in terms of my vision for this office, and personality-wise.” He won the election and offered Stewart — whom he describes as committed, loyal, strategic “and a hell of a lot of fun” — one of two No. 2 positions in his new office. After two decades at her firm, change was tempting as was the variety of trial and appellate work, the caliber of lawyers, and the chance to work with Herrera, she said. “I’ve never looked back.” Within a year, she’d taken the lead on one of Herrera’s more high-profile missions, a federal suit accusing Tutor-Saliba Corp. of filing bogus change orders and false claims under a local minority business law while working on the expansion of the San Francisco airport. And Herrera calls Stewart a natural pick to lead his team in the same-sex marriage cases, noting her arsenal of litigation and management skills, as well her history of working on gay rights issues. “On such a high-profile and important issue, I want my best people and my best leaders,” Herrera said. “There’s no one I would ever trust more.” After working for years to defend the benefits law, Stewart says, she didn’t anticipate another case “so central” to gay relationships would come her way during her boss’s four-year term. “It seemed like gay marriage, that was way off in the future.” THE MARRIAGE FIGHT Her “first inkling that something was afoot” came in recent months when some ideas for promoting gay and lesbian marriage floated through City Hall. She heard, for instance, that some activists wanted the city to stop giving marriage licenses to heterosexual couples — Supervisor Tom Ammiano recalls a gay newspaper asking him to comment on the idea. “At that point things being suggested were so out of the realm, to be honest with you, I was just hoping they’d go away,” Stewart said, adding that a refusal to marry heterosexual couples would have been difficult to defend both legally and politically. No one asked her office for formal advice, though, until a week or so before Mayor Gavin Newsom directed the city clerk to start issuing marriage licenses to same-sex couples, Stewart said. Though those licenses were the mayor’s idea, Herrera emphasizes that in a parallel effort soon after, “I and Terry made our own decision to sue the state on the broader constitutional question.” Those battles are not Stewart’s first against the Alliance Defense Fund, one of the legal groups fighting the marriages. The Arizona-based group has also fought the city’s benefits law. And the fund’s Robert Tyler, a lawyer now frequently in court on the marriage cases, faced off against Stewart in oral argument before the Ninth Circuit U.S. Court of Appeals last year. The court sided with Stewart in that round, defeating an argument that the city law was pre-empted by state statute. The two sides have each scored some points in nearly six weeks of courtroom sparring over same-sex marriage. “The other side has done a good job of public relations, and in the courts, of painting the issue as one of municipal anarchy,” Stewart easily acknowledges. She’ll argue to the Supreme Court that Newsom, believing the state family laws unconstitutional, was duty-bound. “The mayor wasn’t smoking something. He had a good legal basis.” As persuasive authority, her team’s briefs cite cases from Massachusetts to Canada — as well as U.S. Supreme Court Justice Antonin Scalia’s dissent from last year’s Lawrence v. Texas — when the majority, to the cheers of gay rights advocates, found a law prohibiting sodomy unconstitutional. In his dissent, Scalia wrote that the majority’s reasons for overturning an anti-sodomy criminal statute “dismantle[d] the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,” the city attorney’s team notes in a brief submitted to the state Supreme Court. Stewart’s an out-of-the-box thinker when it comes to digging up cases, according to Hausman, the Howard, Rice partner. When she could find little case law on point in the United States in one case, Stewart turned to English common law, he recalled. “If she couldn’t find it easily, she kept searching till she found a way to win.” And in her efforts to win the same-sex marriage cases, Stewart has faced personal as well as legal questions. Three of the other six deputy city attorneys on the cases seized the month-long window of opportunity to marry their same-sex partners, Stewart says. She and her domestic partner, San Francisco business transaction solo Carole Scagnetti, passed on the chance, though their 1995 wedding ceremony lacked legal significance. “Carole said we would get married when I win the case,” she added slyly. As lead attorney, Stewart says, there was too much risk of emotional involvement. “I try to separate my personal life from my professional life a little bit.” John Eichhorst, a Howard, Rice partner who’s worked with Stewart on past cases, says her even-handed approach to evaluating her opponent’s case is a weapon. “She is able to understand the other side’s position, is not blinded to it by the fact that her client’s position may be different.” Many local lawyers who don’t know the fast-talking Stewart from court know her through the local bar association, where she served as president in 1999. The same year, she co-founded the bar’s “School-to-College” program at Balboa High School, which helps students, often the first in their families to go to universities, navigate the college application process. “She has a huge amount of energy,” said Jerome Falk Jr., a Howard, Rice partner and another of Stewart’s mentors, who once served as president of the bar himself. “I don’t know how she did it all.” The “School-to-College” program — which sends students to visit schools around California and on the East Coast, and signs up volunteer lawyers to mentor and help students fill out applications — remains Stewart’s pet project, and she is its driving force. But besides that, and her seat on the board of the Legal Aid Society Employment Law Center, she says, she’s pared down her activities in the past few years due to work and a new child at home. Three years ago she and Scagnetti became legal guardians for a 16-year-old girl, the younger sister of the first student Stewart mentored at the high school.

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