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Legal groups opposed to gay marriage say they’ll attack a San Francisco Superior Court judge’s strict-scrutiny analysis of California marriage laws on appeal. In a tentative decision Monday, Judge Richard Kramer declared the state laws limiting marriage to a man and a woman unconstitutional. Neither a marriage law enacted by legislators nor another passed by voters meets constitutional muster under the strict-scrutiny test Kramer says should apply, nor would it under a less stringent rational-basis test, the judge wrote. Kramer dismissed many arguments put forth by the state government or groups arguing to uphold the marriage laws, including tradition, procreation and the rights the state already gives same-sex couples through domestic partnership laws. “The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal,” Kramer wrote. The attorney general’s office hadn’t determined as of Monday afternoon whether the state will appeal once Kramer’s decision becomes final, a spokesman said. But as the city of San Francisco, gay rights groups and same-sex couples who argued before Kramer were celebrating Monday, two legal groups that argued alongside the state were vowing to appeal. “We’re going to focus on the fact that it passes rationale basis, that strict scrutiny doesn’t apply,” said Mathew Staver, president of Liberty Counsel. He called Kramer’s assertion that the laws couldn’t survive the rational-basis test “absurd, shocking and astounding.” “That test is very deferential for the state,” Staver said. “You have to [negate] every conceivable, possible reason for the law.” “This opinion attempts to raise the rational-basis standard inappropriately,” agreed Robert Tyler, an attorney with the Alliance Defense Fund. He anticipates his group will appeal that and other parts of Kramer’s analysis. Keker & Van Nest partner Steve Hirsch isn’t involved in the litigation on either side. But the appellate lawyer speculated on some ways that gay marriage opponents may attack Kramer’s reasoning. The judge arrived at the strict-scrutiny analysis in part by concluding that the marriage laws discriminate based on gender, Hirsch noted. Gay marriage opponents have argued the ban on same-sex marriage applies equally to men and women. But Kramer noted that old laws that used to prohibit interracial marriages applied to both black and white people, yet California and federal courts found them unconstitutional decades ago. Attorneys arguing to uphold the status quo now will probably argue that while race was behind the anti-miscegenation laws, sexual orientation, not gender, is at the root of the marriage laws, Hirsch said. Some of those lawyers have already asserted in past briefs that even if the laws do discriminate based on sexual orientation, California appellate courts have never applied strict scrutiny to that classification. “If there’s an Achilles’ heel on the strict-scrutiny issue, that might be it,” Hirsch said. But, he added, “that doesn’t mean that the decision won’t be upheld.” Kramer is well respected, Hirsch said, “and having his name at the bottom of the opinion is going to carry some weight.” Kramer was appointed to the bench in 1996 by Republican Gov. Pete Wilson. He now presides over the San Francisco trial court’s complex litigation, which more typically involves business disputes such as consumer class actions and bad-faith insurance litigation. City officials and gay rights advocates were upbeat but cautious Monday. “This country is changing. There’s absolutely no reason for anybody to be excluded anymore,” said City Attorney Dennis Herrera. But Mayor Gavin Newsom, who initiated the city’s short-lived parade of same-sex weddings last year, put the ruling in perspective. “This is just the beginning,” he said. Newsom, the son of a former court of appeal justice, said he’s aware that jurists bring different perspectives to the bench, “and I’m not naive to that.” “This is the first battle in a long war,” agreed Tyler, of the Alliance Defense Fund. “We believe in the end we will prevail either in the courts,” or by passage of a state constitutional amendment. The six coordinated cases that fall under Monday’s tentative decision in Marriage Cases, 4365, began in Northern and Southern California courtrooms. Kramer is expected to make his ruling final after both sides suggest revisions to the draft language at the end of the month.

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