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Taking a cue from the California Supreme Court, three legal groups moved quickly Friday to file a constitutional challenge to state laws on behalf of six same-sex couples. The court made it clear in an order Thursday that it wants the debate over whether same-sex marriages are protected by the Constitution to be hashed out first in trial courts. Instead, the court will take up the question of whether San Francisco had the right to defy state law. The court wrote unanimously that its order, which put a temporary stay on the marriage licenses, “does not preclude the filing of a separate action in superior court raising a substantive constitutional challenge to the current marriage statutes.” Lawyers advocating same-sex marriages wasted no time responding to the court’s hint. The city of San Francisco filed a fresh suit immediately following the court’s order Thursday, and advocacy groups — with several lawyers working through the night — filed their own challenge Friday. The groups, the National Center for Lesbian Rights, the Lambda Legal Defense and Education Fund and the American Civil Liberties Union believe their suit has the best chance of putting the constitutional challenge before the Supreme Court the fastest. “The main issue is making sure that the constitutional issues are presented to the California Supreme Court as quickly as possible,” said Kate Kendell, executive director of the National Center for Lesbian Rights. The Alliance Defense Fund, which has challenged the city’s same-sex marriage licenses, planned to file motions to intervene in both of the latest suits. Though they filed their own suit, the legal groups say they still support the city’s legal arguments and call the city’s actions to issue the same-sex marriage licenses courageous. The groups had previously intervened in a consolidated superior court case alongside City Attorney Dennis Herrera to defend city officials who had been issuing same-sex marriage licenses. Both complaints filed by the city and the legal groups last week argue that the family laws violate the state constitution. The legal groups’ suit is on behalf of six same-sex couples, who lawyers believe will make the strongest case against the family laws. They also believe their suit, which includes a writ petition, has potential to move through the courts more quickly than a complaint alone, due to faster discovery and trial proceedings, the lawyers said. The six couples — five of whom had appointments to be married that were cancelled following the Supreme Court’s order Thursday — “put a face” on the arguments for allowing gay and lesbian marriages, said Tamara Lange, staff attorney with the ACLU of Northern California. “It explains to the court in no uncertain terms who gets hurt.” Two of the plaintiff couples told their stories at a crowded press conference at the ACLU offices Friday. Jeanne Rizzo and Pali Cooper, with about 75 friends and family in tow, found themselves among a handful of couples in the so-called “3 o’clock club” — couples whose scheduled nuptials were cancelled by the Supreme Court’s Thursday afternoon orders. “It’s very important that a court that’s deciding this constitutional question have before it real couples and the injuries that they suffer,” said Jennifer Pizer, senior staff attorney with Lambda. “A lawsuit that is structured that way is the more usual way that the issue would be presented.” Some of the city’s opponents have criticized city officials for acting first and going to the courts later, saying it would be more appropriate for a couple denied a marriage license to challenge the state laws. And at least one legal group has argued that only individuals, not the city, can assert equal protection claims. While Kendell deems it highly unlikely a court would reject the city’s standing, she said “it’s a closer question” than the couples’ standing. Notably, both suits steer clear of the U.S. Constitution, which the city raised in some previous briefs in the other cases. Kendell says the state constitution is more protective. The legal groups also focused on state arguments to put the final decision in the hands of the California Supreme Court, rather than the U.S. Supreme Court, she said. “I don’t think federal constitutional claims help us at all,” Kendell said, adding that she doesn’t believe the U.S. Supreme Court is “prepared” to rule in her clients’ favor. “I think we’ve got a better shot with the California Supreme Court.” Chief Deputy City Attorney Therese Stewart declined to comment on where the city thought its best chances lie, but said the city had primarily raised federal constitutional arguments before to defend itself on the question of city officials’ authority, which it has not made a part of its latest superior court suit against the state. Advocacy groups have been discussing when to bring an affirmative lawsuit challenging California’s family laws “for many years,” Lange of the ACLU said. Mayor Gavin Newsom’s actions last month quickened the pace of the groups’ efforts, and also focused the advocacy groups’ attention on defending his actions rather than filing an affirmative suit, lawyers said. The NCLR, ACLU and Lambda read the Supreme Court’s orders Thursday to say that now is the time for such a suit, lawyers said. “The Supreme Court went out of its way [Thursday] to make it clear that this sort of action should go forward,” Lange said. “We can read, and we can recognize a gilt invitation when it’s presented to us on a silver platter,” Pizer said. The Supreme Court indicated it would focus on the question of city officials’ authority to issue the licenses at a hearing in May or June. It’s doubtful the city or legal groups’ cases would get to the Supreme Court before then, said Steefel, Levitt & Weiss’s Clyde Wadsworth, whose firm is co-counsel for the couples along with Heller Ehrman White & McAuliffe, and the Law Office of David C. Codell in Los Angeles.

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