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The Alliance Defense Fund launched a new strategy in California’s marriage cases Thursday, asserting that the state Constitution already encompasses an opposite-sex definition of marriage. For that reason, the group argued, state statutes that limit marriage to a man and a woman can’t violate the Constitution. That was just one way the Alliance Defense Fund set its arguments apart from those of Attorney General Bill Lockyer, their strange bedfellow defending the state marriage laws against constitutional challenges in San Francisco Superior Court. In a brief filed Thursday, ADF also argued that the state’s only justification for giving married couples special benefits is the state’s interest in “steering procreation into marriage.” In contrast to the Arizona-based legal group, the attorney general avoided any suggestion that families headed by same-sex couples are less beneficial for children. In his brief last month, Lockyer said he wouldn’t assert such arguments “because they are inconsistent with California’s decision to afford substantially equivalent rights and benefits to same-sex couples.” Both ADF and Lockyer’s opening briefs emphasized the traditional understanding of the meaning of marriage. But the Arizona-based legal group took the argument one step further when it argued that the one man-one woman meaning is protected from challenge by inclusion in the California Constitution. Unlike the state statutes facing challenge, the state constitution doesn’t come out and say that marriage is between a man and a woman. But because that’s long been the common meaning of marriage — the group cites a litany of case law and dictionary definitions — that’s the meaning in the California Constitution when it says “marriage,” ADF argues. In its brief, ADF attorney Robert Tyler cites Article I, Section 21, which says, “Property owned before marriage or acquired during marriage by gift, will or inheritance is separate property.” And the court can’t re-define a term “that is so universally understood” without violating the separation of powers doctrine, Tyler wrote. “As long as the Legislature or the People have the authority to act, the courts may not second-guess their policy decisions by judicially re-defining statutory and constitutional terms.” The ADF also tried to refute some of the core arguments put forth by gay marriage proponents, including the city of San Francisco and several gay and lesbian couples. Though both sides agree that there is a fundamental right to marry, ADF argues that right has never meant “anything other than a right to enter the legal union of a man and a woman.” Attacking gay marriage proponents’ analogy to anti-miscegenation laws, ADF argued that interracial marriages, unlike same-sex marriages, had long been recognized in common law by the time the California Supreme Court struck those laws down in 1948, and arose out of a belief in the superiority of Caucasians. “The marriage laws � have no discriminatory intent,” ADF argues. The laws don’t discriminate on the basis of sex or sexual orientation, as gay marriage proponents have suggested, ADF argues. According to the city’s rationale, ADF contends, “the government creates a constitutional crisis every time it provides separate public facilities for men and women.” Equal protection guarantees equal laws, not equal results, the group argued. “Instead of rejecting all distinctions between men and women, California’s strong public policy against sex discrimination ensures that one sex is not given preferential treatment over the other.”

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