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For Christian legal groups who want to defend California’s laws limiting marriage to a man and a woman, there’s something to be said for the try, try again approach. Back in April, the Alliance Defense Fund failed to persuade San Francisco Superior Court Judge James Warren to let its clients intervene in litigation in which the attorney general is defending the laws’ constitutionality. But on Friday, the Arizona-based group, plus Florida-based Liberty Counsel, led Judge Richard Kramer through a different door to a similar result: party status in the constitutional battle. The judge found that suits ADF and Liberty Counsel filed last winter were “sufficient to raise the constitutional issue,” and directed them to file arguments on the constitutional question next month. “The court acted today in the best interests of the [public] at large,” said ADF’s Robert Tyler. Kramer is presiding over a group of coordinated cases about marriage, including suits the city and several same-sex couples filed against the state, and suits the Alliance Defense Fund and Liberty Counsel filed last winter to try to stop San Francisco’s month-long parade of gay marriages. But after the state Supreme Court stopped the weddings, and invalidated the gay marriages in August, a dispute arose over what to do about ADF and Liberty Counsel’s original suits. Lawyers for gay marriage proponents asked Kramer to dismiss the Christian groups’ claims as moot in light of the Supreme Court ruling. Kramer told them that they can still challenge ADF and Liberty Counsel’s standing with a separate motion. But he said he wouldn’t hold up the litigation in the meantime, and noted, “unless you come up with something different, I don’t think that’s going to work.” Lawyers from ADF and Liberty Counsel have expressed concern that Attorney General Bill Lockyer would not defend the marriage laws with the same vigor and arguments that they would. After Kramer’s ruling, lawyers on both sides agreed his decision was about as good for them as intervention. Still, the Alliance Defense Fund plans to push on with its intervention request before the First District Court of Appeal, in order to safeguard its status in the litigation against further challenge and set a precedent. Tyler said his group aims to show that voters and legislators “have a rational basis” to find that heterosexual marriage provides the optimal results for children, families and society. Liberty Counsel plans to include studies in its arguments with similar assertions, said senior litigation counsel Rena Lindevaldsen. Heller Ehrman White & McAuliffe partner Stephen Bomse, one of the lawyers representing same-sex couples, and Deputy City Attorney Sherri Sokeland Kaiser tried to sway Kramer from his decision Friday, to no avail. After court, Bomse said he was reassured by the judge’s comments that Kramer won’t let ADF or Liberty Counsel “sidetrack” proceedings, adding that he’s not inclined to appeal because he wants the case to keep moving forward. As of Friday afternoon, City Attorney Dennis Herrera hadn’t decided whether to appeal. In court Friday, Bomse launched into a near-monologue of at least 20 minutes, arguing the groups’ suits no longer have legs because the Supreme Court already stopped the city’s gay weddings. “This is a question of them not having a claim.” Kaiser agreed. “Lots of people disagree with lots of positions this city takes,” but they can’t all seek declaratory judgment. “The test is whether there’s any more relief to be gotten under the complaint,” she argued. In ADF and Liberty Counsel’s best-case scenario, she argued, a judge couldn’t order the city to do anything differently. The judge suggested at one point that making the Christian legal groups amici curiae, as Bomse suggested, might open the floodgates to other amici. He suggested he’d be ready to hear oral arguments on the big question between December and February.

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