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SACRAMENTO � Gov. Arnold Schwarzenegger has quietly retained private counsel and filed his own legal brief ( .pdf) � separate from one submitted by Attorney General Jerry Brown � urging the state Supreme Court to uphold California’s ban on same-sex marriage. The governor filed papers with the state’s highest court on June 14 announcing that Sacramento attorney Kenneth Mennemeier Jr., and not Brown’s office, would be representing him in In Re Marriage Cases, S 147999. The governor declared a conflict of interest, Schwarzenegger spokesman Bill Maile said, because the attorney general’s office “wanted to argue something different than what we had argued in our previous briefs and in the lower courts.” Specifically, Schwarzenegger disagrees with a new tack crafted by Brown that appears to open the door for the court to consider declaring gays and lesbians a protected class. While Brown argues in a brief ( .pdf) filed last month that the court should use a rational basis test in scrutinizing California’s marriage restrictions, he then invites the justices to employ an intermediate scrutiny standard, “which is both more sensitive to petitioners’ interests … and still acknowledges that the legislative policy of preserving traditional marriage is worthy of being honored because of its importance.” Brown continues: “There can be little doubt that gay men and lesbians constitute a minority group that is subject to prejudice, both as a matter of history and as a contemporary reality. Under these circumstances, it is arguable that treating the laws preserving traditional marriage as subject to mere rationality review may not be appropriate.” Those arguments depart from those previously submitted ( .pdf) to the First District Court of Appeal by then-Attorney General Bill Lockyer, who said only the rational basis standard should be used. The new strategy apparently goes too far for Schwarzenegger, too, who argues simply that homosexuals are not a protected class that would trigger stricter scrutiny from the court. Bobbie Wilson, a Howard, Rice, Nemerovski, Canady, Falk & Rabkin partner representing one of the plaintiffs, said Thursday she’ll still argue strict scrutiny, but said intermediate scrutiny would be the “next best thing.” “The fact that [the AG] would even entertain intermediate scrutiny is certainly interesting,” Wilson said. Although the attorney general typically defends the executive branch in lawsuits, it’s not unheard of for the governor to hire his own attorney when his legal views differ from those of the state’s top prosecutor. In fact, the governor has already retained Mennemeier to represent him in a lawsuit challenging Prop 83, the voter-approved initiative that restricts where sex offenders can live. But in California’s legal battle over gay marriage, Schwarzenegger had let Lockyer lead the defense. Gareth Lacey, a spokesman for Brown, referred questions about the divergent briefs to the governor’s office. “The positions are consistent,” Lacey said. “The marriage laws satisfy equal protection concerns.” Kate Kendall, executive director of the National Center for Lesbian Rights, which is arguing for the plaintiffs in the marriage cases, said she didn’t know why the governor had chosen to hire his own lawyer. She said the two briefs seem “very, very similar” and said Mennemeier’s entrance into the case almost went unnoticed. “We were like, hmm, this is interesting,” Kendall said. “But we were so up to our eyeballs in trying to make the court’s deadline that we didn’t pay much attention to it.” A spokeswoman for the San Francisco city attorney’s office, also a plaintiff in the case, said lawyers handling In Re Marriage Cases were unavailable to comment Thursday, largely because of holiday-related absences. A spokesman for the Alliance Defense Fund, which is supporting the state’s ban on same-sex marriage, declined to comment. In 2005, San Francisco Superior Court Judge Richard Kramer ruled that California’s laws restricting marriage to male-female couples violate the due process and equal protection clauses of the state Constitution. But San Francisco’s First District Court of Appeal reversed Kramer two months ago, saying it was “rational” for the state Legislature to preserve a definition of marriage that “has existed throughout history and which continues to represent the common understanding of marriage in most other countries and states of our union.”

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