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Justice J. Anthony Kline is nothing if not vocal. And Monday’s oral argument over the constitutionality of California’s ban on gay marriage proved to be no exception. The presence of Kline, randomly assigned to sit on the three-justice panel after two other justices recused themselves, may have a significant effect on the First District Court of Appeal’s ruling. The justice once served as legal affairs secretary for former Gov. Jerry Brown and, as an appellate justice, famously held that a gun manufacturer could be sued for negligence in a San Francisco office shooting, an opinion the state Supreme Court reversed. Kline turned out to be the most active interrogator Monday, particularly drilling the state and advocacy groups that are defending the ban. Both he and Presiding Justice William McGuiness seemed especially skeptical of the state’s arguments. Yet Kline was the only justice to say with certainty that, as far as he is concerned, the case will ride on whether California’s ban treads on the fundamental right to marriage. If so, it would trigger strict scrutiny � a much tougher hurdle for the state to clear than the “rational basis” test. Last year, when San Francisco Superior Court Judge Richard Kramer struck down the state’s marriage laws, he said they would fail both a rational-basis test and a strict-scrutiny analysis. The latter test was warranted because the state’s marriage statutes classify on the basis of sex, and also because they impinge on the fundamental right to marry, Kramer ruled. Kline indicated that the case will be won or lost on that issue. “To me, the crucial question in this case is, what are the attributes of marriage that explain why marriage is a fundamental right?” Kline said. If those attributes apply with equal force to a same-sex couple, he added, they should win. First District Justices Stuart Pollak and Peter Siggins had recused themselves prior to Monday’s arguments. Though the court did not disclose why, Siggins worked for Gov. Arnold Schwarzenegger for about two years, primarily as his legal affairs secretary and briefly as his interim chief of staff. Last year, Schwarzenegger vetoed legislation that would have allowed gay marriage, saying the issue should be resolved either by voters or by the courts. And interestingly, before Pollak first became a judge on the superior court in the early 1980s, he had been a name partner at what is now Howard, Rice, Nemerovski, Canady, Falk & Rabkin, which is working pro bono with the city of San Francisco in the marriage litigation. Though McGuiness was not so outspoken Monday as Kline, he too questioned the state more closely than he did the city of San Francisco and other parties arguing against the gay marriage ban. Deputy Attorney General Christopher Krueger had barely begun his opening remarks when McGuiness interrupted to ask, “What, if you will, is the rational basis for not extending to [same-sex couples] the right of marriage itself?” Given the state’s aversion to arguing that an interest in procreation was behind the laws, the question becomes whether history is enough, he said. “Or do we have to look for a state interest beyond that?” The attorney general’s office is arguing that marriage laws should pass a constitutional test because California has an interest in maintaining the common understanding of marriage while at the same time giving same-sex couples virtually identical benefits through domestic partnership. But in response to McGuiness’ question in court Monday, Krueger noted that “the state does not hold a monopoly on offering rational bases.” Attorneys from the Alliance Defense Fund and Liberty Counsel, two legal groups representing the advocacy organizations that want to maintain the laws as they are, are making the procreation argument. “The state certainly has an interest in having as many children as possible born into the marital relationship,” the Alliance Defense Fund’s Glen Lavy told the court. Justice Joanne Parrilli seemed more evenhanded than her two colleagues, frequently putting both the state and its opponents on the spot with precise or hypothetical questions. For instance, she pressed Krueger to get specific, asking him, “At what point in our state did the definition of marriage that exists today arise?” Later, she did the same to John West, whose firm is representing two Los Angeles county couples. “When did the right to same-sex marriage arise?” The state and the two groups defending California’s marriage laws, Campaign for California Families and the Proposition 22 Legal Defense and Education Fund, continue to insist California’s marriage laws would pass constitutional muster under either the strict-scrutiny or rational-basis test. Still, they’re pushing the appeal court to evaluate the laws under the lower standard. All three justices seemed skeptical of the state’s reasoning. Attorney General Bill Lockyer’s office was taking an awfully “conspicuous” stance, Kline said, by arguing there is a state interest in maintaining California’s historical understanding of marriage as a one man, one woman union, without also asserting � as the other two advocacy groups do � a state interest in procreation. Kline contrasted that tightrope-walking position with the stance taken last week by a plurality of New York’s highest court in Hernandez v. Robles, which concluded that state’s constitution does not require the state to recognize same-sex marriages. In fact, Kline said, almost every state case the California attorney general is relying on bases the definition of marriage on a procreation argument. “The state is taking a very unusual position,” Kline added. “Once you take away procreation, you undermine the authority of your own cases, because they rely on procreation.” California is different, Krueger responded, because none of those other states had domestic partnership laws that offer same-sex couples an institution with nearly the same rights as marriage. But, Kline added later, the Legislature also recognized the unfairness and “wrong-headedness” of denying rights to gay and lesbian couples when it adopted the domestic partnership laws. “That’s the inherent contradiction in your position.” Most of the six coordinated cases before the appeal court in California, In re Marriage Cases, JCCP 4365, were sparked by the city of San Francisco’s brief attempt in 2004 to begin issuing marriage licenses to same-sex couples. A California Supreme Court decision that year, though, specified that counties cannot perform such marriages unless the state’s current laws are changed or declared unconstitutional.

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