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As he considers the constitutionality of California’s marriage laws, one question at the top of San Francisco Superior Court Judge Richard Kramer’s mind is whether he should weigh the laws in isolation. Ten months after San Francisco’s mayor defiantly granted marriage licenses to about 4,000 gay couples — and four months after the state Supreme Court invalidated them — Kramer’s courtroom is the first stop in what is expected to be an odyssey back to the state’s highest court. The judge began hearing arguments Wednesday in six coordinated lawsuits from around the state that ask him to decide whether California’s one-man, one-woman matrimony laws are constitutional. By mid-afternoon, he had asked lawyers on both sides of the controversy if he should consider whether the state’s domestic partnership laws could fix alleged constitutional weaknesses in the marriage statutes. “Do I look at the whole package and say, all right, this combination of laws is good enough?” Kramer asked Senior Assistant AG Louis Mauro, echoing a question he had previously put to Chief Deputy City Attorney Therese Stewart. “You have to look at the whole package,” Mauro answered, predictably contradicting Stewart’s reply. Kramer occasionally interjected as Stewart and Mauro made their arguments, but let other attorneys give their presentations without interruption. Nearly all of the parties were able to begin their arguments Wednesday, but the proceedings are scheduled to continue today. Both sides homed in on the question of the level of constitutional scrutiny Kramer should apply. Gay marriage proponents have argued for strict scrutiny, while the laws’ defenders have said they need only pass the rational basis test. Stewart argued that the state must demonstrate a compelling interest in limiting marriage to opposite-sex couples because marriage is a fundamental right. But Mauro argued that the fundamental right Stewart described is actually the right to enter that contract between a man and a woman. The laws show no favoritism based on sexual orientation, Mauro added, because they refer only to gender. “The laws don’t prevent a gay man or lesbian from marrying a person of the opposite sex.” Mauro said voters have expressed through the laws that they want to provide gay couples rights through domestic partnership, but that they don’t want the meaning of marriage to change. “The issue here is whether it offends the Constitution to provide those rights and benefits without calling it marriage,” Mauro said, arguing that it does not. Noting that there are efforts in the Legislature to change the definition of marriage, Mauro urged Kramer to find the laws constitutional and let legislators debate the “social policy.” He pointed out that voters in some states have rebelled against attempts to redefine marriage by passing constitutional amendments to ban it. “Did you just tell me it’s unconstitutional, and you have to change the Constitution to remedy the situation?” Kramer asked, prompting light laughter from the audience. Stewart challenged the state’s separation of powers argument. She said it would wipe out the court’s role in reviewing the constitutionality of any law. And the state’s reliance on notions of traditional marriage, she said, amounts to arguing that a history of exclusion and some people’s “discomfort” with change should provide the basis for upholding a law. “The ‘we’ve always done it this way’ idea is not a reason. It’s a conclusion.” Kramer has signaled that he likely won’t make a decision until after mid-January. He noted Wednesday that he could delay a decision on the constitutionality question if he concludes there are material factual questions that require further proceedings. The city and two traditional marriage groups have put several such questions before Kramer. But on Wednesday he reiterated that he wants to keep factual findings to a minimum. “I want to make sure that any factual matters I deal with are necessary,” he told the lawyers Wednesday morning, asking them to state more specifically why the factual findings that some of them have proposed are relevant. He asked lawyers from the Alliance Defense Fund, for instance, why he should have to determine if marriage has “always” been defined as a man-woman union. “What does that have to do with this case?” the judge asked rhetorically, adding that it seemed too broad, even for a tradition-based argument. Cognizant of the appeals to come, Kramer has in the past expressed the sometimes contradictory desires to move the trial proceedings along while at the same time developing a complete record. And Wednesday’s proceedings, which began late, seemed to be taking longer than anticipated. The army of lawyers involved in the case struggled to find seats in the courtroom. “We only have 25 seats,” one bailiff told them before the start of Wednesday’s hearing. But court attendants scared up enough chairs to accommodate a sea of 30 lawyers in front of the gallery. The day before, representatives for some of the parties said they didn’t know in which order they would be speaking, or how much time they would get to state their case. Kramer informed the lawyers in court Wednesday that he would continue the proceedings until today if necessary. “I don’t think it’s going to take that long,” he added. “But I’m not going to cut anybody off.” “We expected to go home tonight,” said Benjamin Bull, chief counsel of the Alliance Defense Fund, who came from Arizona for the hearing and was among lawyers who had to extend their hotel reservations. But Kramer seemed very patient, as if he wanted everybody to feel they were having their say, Bull added. Robin Tyler, one of the Los Angeles plaintiffs who sued to challenge the laws in February, was among the crowd that began lining up shortly after 6 a.m. to get one of about 80 audience seats for the 9:30 hearing. Despite the recent spate of constitutional amendments banning gay unions in other states, Tyler wasn’t down. “This is just part of being in a movement,” said the activist, adding that she’s been working to secure marriage rights for 30 years. And she wasn’t depressed, she said. “I finally get to have my day in court.”

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