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San Francisco City Attorney Dennis Herrera has transformed his role in the legal fight over same-sex marriages and dragged the state attorney general into a politically uncomfortable position. The city attorney was thrust into a defensive role when Mayor Gavin Newsom’s authorization of same-sex marriage licenses prompted two legal challenges. But Herrera took the offensive last week, announcing at a press conference that he’s suing the state of California and cross-complaining against the plaintiffs who filed one of the challenges last week in San Francisco Superior Court. “What we’re doing is trying to ensure that the constitutional issue is addressed,” and not buried under his opponents’ assertions that city officials had acted without authority, Herrera said. San Francisco argues that city officials are obliged to treat same-sex couples the same as heterosexual couples under the state Constitution’s equal protection clause. Opponents contend that city officials must enforce state family laws that say marriage is between a man and a woman — that only appellate courts can declare a law unconstitutional. Herrera’s cross-complaint challenges the constitutionality of the family laws. The city’s cross-complaint against the state also drags Attorney General Bill Lockyer into the debate, putting him in a politically delicate position. Before Herrera named the state as a defendant Thursday, it had not been involved in the litigation. In a statement Thursday, Lockyer said it’s his duty to defend state laws that say civil marriage includes only a man and a woman, though he indicated those laws don’t fall in step with his personal views. “As a lifelong defender of civil rights, due process and equal protection for all, I do not personally support policies that give lesser legal rights and responsibilities to committed same-sex couples than those provided to heterosexual couples,” the statement said. But, it added, “State law prohibits the recognition of same-sex marriages. It is the duty of my office to defend that law.” Benjamin Bull, a plaintiffs lawyer in one of two superior court cases, Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco, 503943, said he expects Lockyer to defend the law. “Our concern is that the attorney general confidently and vigorously does his job, and that he’s not swayed by political concerns related to his constituents,” Bull said. “If [Lockyer] takes a dive,” he added, “then the public’s going to see it loud and clear, because this has become a national issue.” Also on Thursday, the city and at least one set of opponents said they’ll ask the court today to consolidate the two cases — but each side wants a different judge to preside over them. Judge James Warren has been hearing matters in the Proposition 22 case, while Judge Ronald Quidachay has been hearing matters in the other challenge, Thomasson v. Newsom, 428794. Herrera says Warren should hear the cases because he has invested the most time hearing arguments in them so far. Bull countered, “What they want is delay, delay, delay, and they think that’s what Judge Warren’s going to give them.” Warren is going on vacation for three weeks and has set a March 29 hearing. “What we want is speed, speed, speed,” said Bull, who contends the cases should fall under Quidachay because he’s already hearing the case filed first.

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