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Attorneys arguing that same-sex couples should be allowed to marry in California say the state’s ban against that is costing San Francisco more than $15 million a year. On Thursday, lawyers representing the city and 12 same-sex couples submitted their most substantive arguments to date in their quest to persuade a judge to strike down state law that limits marriage to one man, one woman. “One of the facets that we added to the case was a real analysis of what it costs the public,” said Chief Deputy City Attorney Therese Stewart, who noted that no city has been a plaintiff in similar litigation in other states. The city asserts that because gay and lesbian couples aren’t allowed to marry, it pays for about $13 million in public health and social services for dependent partners and children who might take advantage of employer-provided insurance if same-sex marriage were allowed. It also argues it loses up to $6.1 million a year in sales and hotel tax from wedding-related purchases and honeymoons that don’t take place. But lawyers for the city, and those for a dozen plaintiff couples, devoted most of the two briefs fleshing out their claims of practical as well as emotional harm to gay and lesbian people and their children when same-sex couples are not allowed to marry. They argue that the marriage laws should be subject to strict scrutiny under the California Constitution, but are quick to add that they shouldn’t pass muster even under a rational basis test. Lawyers for the couples contend that laws prohibiting same-sex marriages violate the Constitution’s due process, privacy, free expression and equal-protection provisions. The city argues that the marriage laws interfere with constitutional rights to liberty, privacy and equality. “The great majority of our arguments will follow the trend you’ll see in Goodridge,” said City Attorney Dennis Herrera, referring to last year’s Goodridge v. Department of Public Health, 440 Mass. 309, in which the Massachusetts Supreme Court ordered that state to allow same-sex couples to marry. Both briefs cite Goodridge, and also attempt to draw parallels to Perez v. Sharp, 32 Cal.2d 711, the 1948 case in which the California Supreme Court struck down a state law that prohibited marriages between people of certain racial backgrounds. In their first paragraph, city lawyers note Perez was decided when the winds of popular sentiment were blowing in the opposite direction. They also quote the Perez court, saying there should be “freedom to join in marriage with the person of one’s choice.” Lawyers from Heller Ehrman White & McAuliffe, the Lambda Legal Defense and Education Fund, and other co-counsel for the plaintiff couples draw liberally from declarations by those couples and their families to lend their arguments a personal flair. Attorney General Bill Lockyer, who has said he is not opposed to same-sex unions but is obligated to defend the state marriage law, has dropped few hints about his strategy. His office issued a statement Thursday saying it had not been served with the two briefs and would prepare its response after reviewing them. But in their arguments, plaintiffs took some stabs at what Lockyer or potential intervenors might counter in defense of the laws. The plaintiffs say tradition isn’t a good enough reason, and any argument for a state interest in procreation or protecting children doesn’t add up. They note that the current marriage laws don’t limit the institution to couples who intend to have children. “Any claim that the exclusion of same-sex couples from marriage somehow furthers the welfare of children is especially untenable in California,” lawyers for the couples add, because the state has allowed same-sex couples to adopt children and serve as foster parents. This week, San Francisco Superior Court Judge Richard Kramer is expected to set a date for the state’s response. He is presiding over all the constitutional challenges to California’s marriage laws, which have been coordinated in the San Francisco court.

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