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In a pretrial ruling that addressed what could become one of the central issues in the fight over the constitutionality of California’s marriage laws, San Francisco Superior Court Judge James Warren on Thursday stated that opponents of same-sex marriage had not advanced any valid reason why they would be harmed if same-sex couples were allowed to marry. Warren made the statement during a hearing in which he denied a request by the Proposition 22 Legal Defense and Education Fund to intervene in two cases challenging the constitutionality of California laws that limit marriage to unions between a man and a woman. The two consolidated cases, filed in March on behalf of the city and five same-sex couples, allege that California’s statutory ban on same-sex marriage violates the equal protection and due process clauses in the state constitution. Lancy Woo v. Bill Lockyer, 04-504038, and San Francisco v. The State of California, 04-429539. The Proposition 22 fund, claiming to represent 15,000 members, argued that it needed to intervene to protect the interests of voters who had approved that initiative. Prop 22, passed in 2000, amended the state’s Family Code to state that only marriages between a man and a woman are valid or recognized in California. The Prop 22 group argued that Attorney General Bill Lockyer could not be trusted to defend the law adequately because he had voiced opposition to it, although he also said he would uphold it. Warren stated that a key issue in deciding the intervention request was whether the Prop 22 members might be harmed by the outcome of the cases. The Prop 22 group’s lead lawyer, Robert Tyler of the Alliance Defense Fund, argued that his clients had an economic interest in preserving the institution of marriage as it exists because a change in the definition would affect the tax base. Tyler also argued that his clients would be harmed by a change in law that would “take away the exclusivity of the institution and the benefits associated therewith.” In denying the motion to intervene, Warren stated that the Prop 22 group had failed to show that its members would be harmed if same-sex couples were allowed to marry. He also stated that the group’s interest in seeing Prop 22 enforced was not enough to support intervention. After the hearing, ADF lawyer Tyler called the denial of intervention “a serious injustice to the people of California” and said he would consider appealing. Scott Westrich, a partner at Heller Ehrman White & McAuliffe who represents the Woo plaintiffs, said the Prop 22 group was “grasping at straws” trying to articulate how their clients might be harmed. It is not clear if Warren will continue to preside over these cases. Last week, following instructions by the state Judicial Council, Judge Richard Kramer was designated to decide whether these cases should be coordinated with others raising related issues that are before Judge Ronald Quidachay, as well as with a related case in Los Angeles. Susan Beck is a senior writer for The American Lawyer magazine, an affiliate of law.com and The Recorder.

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