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SACRAMENTO — Appeal court justices hearing oral arguments in a case that has triggered the attempted recall of a Sacramento County Superior Court judge seemed to be leaning toward the judge’s ruling Friday. Judge Loren McMaster had ruled last year that the state’s passage of extended domestic partner benefits — which guaranteed virtually the same rights as marriage — did not violate Proposition 22, a 2000 ballot initiative that defines marriage as between a man and a woman. That ruling had enraged supporters of Prop 22, who in response launched a recall drive against McMaster. Rena Lindevaldsen, senior litigation counsel for the conservative public interest group Liberty Counsel, argued Friday that AB 205 unconstitutionally circumvented Prop 22. But the Third District Court of Appeal justices hearing the appeal repeatedly stated their reluctance to look beyond the actual language of the proposition, which doesn’t regulate domestic partner benefits. “Courts don’t make public policy in this arena,” said Presiding Justice Arthur Scotland. “We interpret statutes to decide what they mean.” Both Lindevaldsen and Robert Tyler, attorney for the Alliance Defense Fund, argued that a series of rights go along with the “status” of marriage and that granting those rights to domestic partners constitutes extending marriage to people voters wanted to exclude. “Marriage is more than a name,” said Tyler. “It’s a legal standard defined by a collective understanding of the laws regulating marriage.” Justice Vance Raye pointed out that Prop 22 supporters could have included domestic partnerships in their initiative, but chose not to do so. “If we just look at the words voters were presented with, what about that language would suggest the voters were doing anything more than regulating the status of marriage?” Raye asked. While Lindevaldsen and Tyler argued that the status and rights of marriage are intertwined, Deputy Attorney General Kathleen Lynch and David Codell, the attorney for domestic partners affected by AB 205, insisted that voters, in approving Prop 22, had no intention of limiting domestic partner rights. “The voters of this state are entitled to get what they voted on — no more and no less,” said Lynch. Marriage rights constantly evolve, argued Lynch, yet the status of marriage remains unchanged. “A couple married in 1955 are no more or less married today — and clearly, marital rights have changed,” said Lynch. Codell argued that the very fact that same-sex partners are excluded from marriage suggests there is still a difference between marriage and domestic partnership. “Marriage in California is still an institution between a man and a woman,” said Codell. “We contend that is unconstitutional. Nevertheless, AB 205 does nothing to end that.” The recall campaign against McMaster sent shockwaves throughout the state –causing an outcry from judges concerned about their independence and heightening interest in the Knight case. A ruling by San Francisco Superior Court Judge Richard Kramer earlier this month that the state cannot ban marriage between same-sex couples seemed to take some of the heat off McMaster, although recall supporters have said they will go forward with their efforts unless the Third District reverses him. It is unclear when the Third District will rule on the case.

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