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The constitutional fight over same-sex marriages in San Francisco Superior Court reaches a fork in the road this week. The future of two recently consolidated cases will be affected by whether a Christian legal advocacy group is allowed to intervene to defend state marriage laws alongside Attorney General Bill Lockyer. On Monday, in a joint brief, lawyers for the city and same-sex couples fighting for gay and lesbian marriages vigorously opposed the Alliance Defense Fund’s request to intervene in San Francisco v. State of California, 429539. A hearing on the question is scheduled today before Judge James Warren. The Alliance Defense Fund questions whether Lockyer will forcefully defend the state laws that say marriage is between a man and a woman. But the attorney general is studiously avoiding stating support or opposition to the group’s request to join the case. “The attorney general is reluctant to get involved in encouraging people to file or trying to stop them from filing motions,” said spokeswoman Hallye Jordan. Intervention can affect original parties on both sides of a case in a number of ways, from determining who controls the case down to details such as how many pages lawyers get to make their arguments. “To the extent another party could weigh in and amplify on some of your points, it’s a very effective way of dealing with the page limits,” said Scott DeVries, managing partner at Nossaman Guthner Knox & Elliott. On the other hand, he said, the original party on the same side might object if the intervenor appears likely to “dilute and distract” from their arguments. And a party on the opposite side might welcome an intervenor “either because it’s a reprehensible organization” that makes the other side look bad or because they might get more pages to respond to their opponents’ arguments, DeVries said. Another consideration for lawyers representing the original parties is how much help they can expect from an intervenor, in the form of professional assistance, public support or making arguments they’d rather not make, said Richard Marcus, a professor at Hastings College of the Law. “Suppose there’s an argument that you’re not comfortable making, but these other folks might be happy to make it,” Marcus said. The Alliance Defense Fund is requesting intervention on behalf of the Proposition 22 Legal Defense and Education Fund, a nonprofit corporation that claims a membership of 15,000 California residents. Lawyers for the city and same-sex couples strongly dispute whether the Alliance Defense Fund’s Prop 22 fund client meets the legal requirements to intervene. The Prop 22 fund argues it has a direct and immediate interest in the outcome of the litigation in superior court because of its interest in enforcing and defending Prop 22. The Prop 22 fund’s president, state Sen. William J. “Pete” Knight, drafted one of the marriage laws being challenged, a 2000 voter-passed initiative that says “only marriage between a man and a woman is valid or recognized in California.” The Alliance Defense Fund also argues a ruling on the constitutionality of that statute will directly affect a Sacramento County Superior Court suit the Prop 22 fund has brought, in which it argues that a recent state law expanding rights for domestic partners illegally amended Prop 22. The city and plaintiff couples counter that an interest in the legal precedent of the case doesn’t constitute a direct and immediate interest. They also argue that Prop 22 fund members won’t be directly affected because regardless of the outcome of the consolidated suits, they’ll retain the right to marry. “I can’t predict in advance how our briefs would differ,” said Benjamin Bull of the Alliance Defense Fund. “If the attorney general files the same kinds of briefing, all the better. But we can’t know that in advance.” The plaintiffs say they wouldn’t oppose the Alliance Defense Fund participating as amicus curiae, but that position wouldn’t give the group as much say in the litigation. And while amici sometimes get time in oral argument, they’re not guaranteed to be able to question witnesses, nor can they appeal like intervenors. “If you’re an amicus, it would be on a brief-by-brief basis, whether the court will accept your input,” DeVries notes.

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