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Attorney General Bill Lockyer’s first meaty arguments in defense of California’s marriage laws Friday only added to two Christian legal groups’ determination to jump in and defend the laws alongside him. Rena Lindevaldsen, senior litigation counsel for Liberty Counsel, commended Lockyer’s summary of case law. But, she added, she doesn’t think the AG is putting on “as zealous a representation as he could.” Lawyers with Liberty Counsel and the Alliance Defense Fund, two groups that rushed to the courthouse to try to stop San Francisco’s same-sex marriages last winter, don’t have a quarrel with what Lockyer argues in the brief filed in San Francisco Superior Court. It’s what he left out. In his arguments, Lockyer relies heavily on tradition as a justification for limiting marriage to one man, one woman. And he steers clear of any suggestion that families headed by same-sex couples are less stable or less beneficial for children. Lockyer is obliged to defend the marriage laws in challenges brought by San Francisco and gay couples. Lindevaldsen said she is disappointed, though not surprised, that the attorney general didn’t do much about several declarations from same-sex couples about why they want the marriages, which were submitted earlier by lawyers for the city of San Francisco. “It’s not about whether you need these rights, it’s about does the law require the state to give these rights,” she said. Lockyer’s lawyers “didn’t move to strike them, which is what they could have done and should have done,” she added. She and Robert Tyler of the Alliance Defense Fund also contend the AG should have countered with evidence explaining what they say are societal benefits to limiting marriage to heterosexual couples. “There are significant public policy reasons to support the traditional nuclear family,” said Tyler. In papers submitted in a separate case before the state Supreme Court this year, Tyler’s Arizona-based group argued that “the state has a compelling interest in fostering relationships that stabilize society and provide an ideal environment for raising the next generation.” Lockyer, on the other hand, has dropped comments like one at a press conference in August, when he said his job is to defend the state’s laws but that he’s a civil rights advocate and “not opposed to same-sex marriages.” In August, the California Supreme Court invalidated roughly 4,000 same-sex marriages San Francisco performed earlier this year, finding that the city exceeded its authority by acting without a judicial ruling, saying state marriage laws are unconstitutional. That’s what the city and couples are hoping to get from the suits in San Francisco Superior Court. Jon Davidson, one of the lawyers representing same-sex couples in the litigation, said the AG is constrained by the state’s strong domestic partnership laws. “He has to not only defend the marriage laws of California, but the attorney general has to defend the parenting laws and the domestic partnership laws,” said Davidson, senior counsel at the Lambda Legal Defense and Education Fund. Lockyer’s arguments seem similar to ones put forth by attorneys general in New York and New Jersey, which also provide some domestic partnership and parenting rights for same-sex couples, Davidson said. Even where states allow same-sex parenting, one could still make an argument that mother-father families are the optimal choice, Lindevaldsen said. By her assessment, Lockyer is making similar arguments based on tradition that attorney generals made in Oregon and Washington state. Trial courts there weren’t convinced, she added. San Francisco Superior Court Judge Richard Kramer, who’s presiding over the bundle of litigation known as Marriage Cases, 4365, is expected to hold a hearing later this month on just what role the two Christian legal groups will be allowed to take. Though the groups filed early challenges to stop the city’s same-sex marriages, proponents of same-sex marriages now argue those suits became moot after the Supreme Court’s August decision. As amici, the groups would be able to submit written arguments, and if they’re lucky, take part in oral argument, said Liberty Counsel President Mathew Staver. But if they’re considered parties, they’d definitely get to argue orally, plus enter evidence, cross-examine witnesses — and have a hand in strategy, Staver said. “If we get full party status, we’re able to help craft the litigation defense.”

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