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In San Francisco’s court battles over gay marriage, City Attorney Dennis Herrera has been quick to invoke 2003 opinions by the U.S. Supreme Court and the Massachusetts Supreme Court that gay rights advocates hailed as major milestones in support of their efforts. Not surprisingly, the city’s opponents are staying far away from those cases. They want the case to turn on issues of municipal authority, not cutting-edge constitutional questions — at least for now. “It’s a total red herring,” said Richard Ackerman, of Lively & Ackerman in Temecula, Calif. “We’re attacking what [Mayor Gavin] Newsom did. We’re not attacking the gay marriage issue head on.” The plaintiffs are trying to focus on the mayor’s authority, while the city and its allies want to put the larger question front and center “even in this early stage,” says Steefel, Levitt & Weiss’ Clyde Wadsworth, who filed a brief last week in support of newlyweds. After San Francisco started issuing marriage licenses to same-sex couples last week at Newsom’s behest, groups tried to stop those marriages by filing two legal challenges in superior court: Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco, 503943, and Thomasson v. Newsom, 428794. The cases are likely to wind up in the state appellate courts, and appellate lawyers are watching closely as they unfold. “The sort of obvious reason why the city would cite Lawrence and Goodridge is because those cases lay the foundation for a constitutional attack,” said Keker & Van Nest partner Steven Hirsch, noting that he has not read the briefs on either side. “That’s exactly why the other side would want to ignore them.” The city argues that denying gay and lesbian couples the ability to marry violates the California Constitution. Sidestepping the city’s discrimination argument, opponents say the mayor had no legal standing to allow marriages between gays and lesbians. In June, five U.S. Supreme Court justices held that a Texas law criminalizing certain same-sex sexual conduct violated the federal Constitution’s Due Process Clause, Lawrence v. Texas, 123 S.Ct. 2472. Justice Sandra Day O’Connor concurred, but concluded that “all persons similarly situated should be treated alike” under the Constitution’s Equal Protection Clause. Three justices dissented. In November, the Massachusetts Supreme Court decided 4-3 that Massachusetts can’t deny same-sex couples civil marriage based on the due process and equality provisions of the state’s constitution. The state had denied marriage licenses to 14 plaintiffs in Goodridge v. Department of Public Health, 440 Mass. 309. Santa Clara University School of Law professor Gerald Uelmen says he isn’t surprised the two cases are coming up in California’s legal battles over gay marriage. “Justice [Antonin] Scalia himself, in his dissent in Lawrence, said ‘here comes gay marriage.’” Goodridge may provide a road map for jurists and lawyers on both sides, said Jon Eisenberg, an appellate lawyer in Horvitz & Levy’s Oakland, Calif., office and former staff attorney at the 1st District Court of Appeal. “It’s a great starting point,” Eisenberg said. “It makes it easier to find support for your position, it makes it easier to attack.” Regardless of which side a majority opinion supports, good lawyers can always extract something to support their side’s position, said Keker & Van Nest’s Hirsch, whose practice focuses on state and federal appellate work. “As an appellate advocate, you want to give the court as many bases for a decision as possible,” said Paul Fogel, a partner in the appellate group of Reed Smith Crosby Heafey in San Francisco. While appellate courts may choose to look at how other states construe similarly worded provisions of their constitutions, Fogel said, California’s courts usually start with the text of the constitutional provision and the history behind it. And appellate courts usually strive to write very narrow opinions, Fogel said, though “in Massachusetts, the court obviously believed the circumstances required a very broad pronouncement.” Ackerman, who represents gay marriage opponents, calls cites to Lawrence and Goodridge a distraction. Benjamin Bull, a plaintiff’s lawyer in the other San Francisco case, Proposition 22, says the issues are bound to come up, but contends the city has put the cart before the horse. The court will likely have to address the constitutionality of the state statutes, Bull acknowledges, adding his clients are prepared to address the Texas and Massachusetts cases down the line. “We didn’t want to get sucked into that issue right now, because we thought it was a side issue that took away from our points,” he said. The plaintiffs in his case asked Superior Court Judge James Warren for an immediate stay on Tuesday. Warren denied the request, but ordered the city to stop issuing the marriage licenses or return to court next month and show cause as to why they don’t have to cease and desist, said Bull, chief counsel for the Arizona-based Alliance Defense Fund. “If the goal is scoring a touchdown, [Warren] let us get inside the 10-yard line, and said wait until the 29th of March.” Matt Dorsey, a spokesman for the city attorney’s office, called Warren’s order neutral. “It’s not what I would regard as a slam-dunk for either side,” he said. Bull said his clients were considering a variety of options. They could file a writ in the 1st District, wait to see if Judge Ronald Quidachay makes a more favorable ruling Friday in the Thomasson case, or file a motion to consolidate the two challenges before one judge, Bull said. If consolidated, Bull predicts the cases would be given to Quidachay, the judge hearing the case that was filed first. Bull says consolidation could economize resources and get his case before a judge sooner, adding that Warren is supposed to go on vacation for three weeks between now and March 29. “We’re not judge shopping, we just want a ruling,” Bull said. Lambda Legal Defense and Education Fund senior counsel Jon Davidson, who’s representing five same-sex couples who have intervened in the Proposition 22 case, said he could see reasons to put consolidated cases before either judge. “One of the considerations is which judge has expended more resources already.” On Tuesday, Quidachay found that plaintiffs in Thomasson had not met notice requirements, and postponed a hearing on their request for a temporary restraining order until Friday. The plaintiff’s lawyers filed a petition for writ of mandate with the 1st District on Tuesday afternoon. A three-judge panel denied that petition and a request for a stay Wednesday, citing a failure to provide a sufficient record. “While there has been considerable media coverage, we are not empowered to reach a determination based upon what is reported elsewhere,” their order said.

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