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Attorney General Bill Lockyer’s decision to go directly to the state Supreme Court to defend California’s definition of marriage won’t likely bring an immediate end to gay weddings in San Francisco, experts on the court and the issue said Tuesday. They said the court’s justices would probably see no urgency and would instead want to see the record developed further at the trial or appellate court. “They prefer these issues come up fully litigated in a lower court, with some factual rulings,” said Gerald Uelmen, a professor at Santa Clara University School of Law. But if the issue eventually reaches the state justices, some advocates predict that the court, with its generally moderate to progressive record on civil rights, will find that the state constitution’s equal protection clause allows gays and lesbians to marry. They point all the way back to 1948′s Perez v. Sharp, 32 Cal.2d 711, the first ruling by any appellate court in the country to strike down laws against interracial marriage — 19 years earlier than the U.S. Supreme Court. “That’s very strong authority on what the right to marry means,” said Jon Davidson, senior counsel in the Los Angeles office of New York’s Lambda Legal Defense and Education Fund. “It talks about marrying the person of your choice.” He and others also say it must be presumed that the justices could be influenced by the court being based in liberal San Francisco, with some gay employees on the payroll. In fact, the justices’ offices face City Hall, where more than 3,000 same-sex couples have wed since Feb. 12. “The court lives in the world,” Uelmen said. “They’re not on some mountain top, and very often that has an impact on how the issues are perceived. “You wouldn’t say they were biased or had any predisposition on the issue,” he added, “but they certainly are aware of how important this issue is to a lot of people they know.” Lockyer reaffirmed Tuesday that his office will file an original writ with the state Supreme Court on Friday, challenging the city of San Francisco’s decision to issue same-sex marriage licenses in defiance of state law. Paul Fogel, an appellate specialist at Reed Smith, said the justices could issue either an order to show cause or an alternative writ if they believe the petition has arguable merit. He said the petitioner must show that the issue is one of statewide importance, there are no disputable facts and that there would be enormous or irreparable harm if the marriages are not stopped. Even if the first two factors possibly could be met, Fogel said, the third is problematic for the attorney general. “I certainly don’t see the urgency,” he said. “You usually have to convince the court that the earth is going to be tilted off its axis. “And, of course,” he added, “why wouldn’t a court of appeal be as competent to issue a stay or not?” The 1st District has already declined to issue a stay, as have two judges with the San Francisco Superior Court. Jon Eisenberg, an appellate lawyer in Horvitz & Levy’s Oakland, Calif., office and a former staff attorney at the 1st District Court of Appeal, agreed that it’s quite rare for a civil case to bypass the intermediate appellate court. He recalls two such cases in which the state Supreme Court issued an opinion, in 1982 and 1989, although Eisenberg acknowledged there could be others. “It happens about once a decade,” he said. There were five writ petitions filed last year to challenge various aspects of the gubernatorial recall election, he said. “And in each of those cases the court in one form or another did not decide the cases on the merits,” said Eisenberg, who worked on one of those petitions. One legal scholar said he wouldn’t be surprised if the Supreme Court issues a stay on marriages while directing the lower court to proceed with the case. “That would allow the status quo to be preserved,” said Douglas Kmiec, chairman and professor of constitutional law at Pepperdine University School of Law, “and give the court the necessary time to think the issue through.” Kmiec, who opposes same-sex marriages, also said he believes the AG “makes a far better case” for temporary relief than either of the private challengers. “It’s the attorney general, after all, who embodies the state of California and has an interest in its enacted laws being faithfully adhered to by all officers,” Kmiec said. He added that the AG “has an interest, as well, in seeing that individuals who rely upon the law are in any way misled or otherwise placed in legal jeopardy because of these licenses.” If the justices eventually tackle the merits, same-sex marriage advocates hold out hope that they’ll follow courts in Hawaii, Massachusetts and even Canada that backed gay marriage. The California Supreme Court has upheld gay rights in recent years in cases involving police stings, insurance coverage for people with HIV and second-parent adoptions. The court, however, sided with the Boy Scouts of America in holding that the organization could deny membership or leadership roles to gays. Davidson, of Lambda, said that by the time the high court rules on gay marriage, same-sex couples may have married in Massachusetts and the onus might be off the justices. He and Evan Wolfson, executive director of the New York gay rights group Freedom to Marry, say the justices can’t ignore what’s going on outside their windows. “The court can see thousands of couples lining up, some in the rain, some overnight, some with their kids and parents,” Wolfson said. “Not to protest, not to take anything away from anyone else, but simply to get married.” Editor’s note: Mike McKee and his partner are one of the same-sex couples issued a marriage license this month.

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