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Now that the sideshow is over, the real fight over the constitutionality of banning same-sex marriage is about to begin. And attorneys on both sides of the issue predict that the constitutional challenge in San Francisco Superior Court will move along quicker than many might imagine. “It could be resolved by the end of the year,” Deputy City Attorney Therese Stewart said Friday. “The trial judge did say he was committed to getting it resolved quickly.” So is Attorney General Bill Lockyer, the defendant in the coordinated proceedings. “The AG has made it clear that he hopes this issue is resolved quickly,” spokeswoman Hallye Jordan said, “to get guidance and settle the issue for the state and the couples who are affected.” The San Francisco proceedings involve four suits that were coordinated into one case. Two were filed against Lockyer, including one by the city and another by two gay rights groups and 12 same-sex couples denied marriage licenses in San Francisco. In a third case, the Rev. Troy Perry, founder of Metropolitan Community Churches, and gay activist Robin Tyler and their partners have taken on the county of Los Angeles. The final case was filed by San Francisco attorney Waukeen McCoy. Briefs are due from the plaintiffs by early next month, and Judge Richard Kramer will preside over a case management conference on Sept. 8. At that point, Stewart said, a lot of things will be put on the table: “What kind of proceeding are we going to have? Are there real disputes of fact? Are they the kind of disputes resolved through a trial or can they be resolved on paper?” Jon Davidson, senior counsel in the Los Angeles office of Lambda Legal Defense and Education Fund, said the plaintiffs at this point don’t know how the state is going to justify banning gay marriages, and therefore aren’t sure what legal standard the state will have to meet to support its stance. “It’s our position that the denial of the right to marry denies a fundamental right, and therefore strict scrutiny applies,” he said. “There is a denial of equal protection here.” Jordan, of the AG’s office, wouldn’t discuss the AG’s legal strategy, only saying that it would depend on the plaintiffs’ claims. “We won’t discuss what’s going to be in our briefs,” she said, “until they’re filed with the court.” Currently, the Alliance Defense Fund and the Campaign for California Families — the two conservative groups that successfully opposed San Francisco’s issuance of same-sex marriage licenses — aren’t part of the superior court suit. They previously were denied intervenor status but could try again — or seek to file an amicus curiae brief. On Friday, an ADF attorney said he didn’t want to discuss legal strategy, but said the Scottsdale, Ariz.-based group definitely wanted to be a party to the suit “one way or the other.” “AG Bill Lockyer has said he supports the rights of gays to marry,” senior counsel Glen Lavy said. “And in view of his personal support, I think we have a continuing role to play in this litigation.” Lambda’s Davidson said he would oppose intervenor status for ADF as well as the Campaign for California Families. “Part of our objection is, who are they?” he said. “In a suit that we’ve brought saying our clients’ constitutional rights are denied by not being allowed to marry, why do they get to intervene? How are their clients adversely affected in a way that gives them standing?” Davidson also suggested the possibility of the case eventually leapfrogging the appellate courts and going back to the state Supreme Court. Appellate courts play a role by developing the law when decisions come from different trial courts, he said. “Here, when you have a coordinated proceeding, you’ve assured there won’t be different rulings. Everything’s combined already.” Appellate specialist Jon Eisenberg said Rule of Court 29.9(a) allows a case to bypass the appellate level if accepted by the Supreme Court. “It happens about once in every 10th blue moon,” said Eisenberg of Horvitz & Levy. “It’s about as unusual as a petition for an original writ straight into the California Supreme Court — which has already happened in this case.” In granting the writ, though, he said, the court saw hundreds of marriages happening right outside its windows daily and sensed an emergency. “Now they may not see such an emergency,” he added. “In fact, the Supreme Court, as a matter of policy, doesn’t favor taking a case straight from the trial court. They want it to percolate. They want the benefit of the wisdom of the court of appeal.” No matter how the case proceeds, Jennifer Pizer, Lambda’s senior staff attorney, said Thursday that it should have a more human feel to it. The cases decided by the Supreme Court last week, though invalidating thousands of marriages, had more to do with cities’ ministerial functions. “In Washington and Massachusetts, where these [kinds of] cases have been successful, those cases are presented as families who are harmed by the denial of their fundamental constitutional rights,” Pizer said. “They experience harms — both practical harms and severe dignitary harms — by the denials of their constitutional rights. “Does the state have any legitimate reason for inflicting those harms on [its] residents, and we say no.”

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