Divorce Attorneys

The state and its would-be allies in defense of California’s ban on same-sex marriage have broken ranks on whether the state Supreme Court should review the issue after an appellate court upheld the heterosexuals-only marriage law.

Attorney General Bill Lockyer, representing Gov. Arnold Schwarzenegger and other state officials, urged the high court Monday to grant a hearing to challengers of the marriage law and provide “finality and certainty for the citizens of California'’ on the issue.

But lawyers for the Campaign for California Families, which opposes both same-sex marriage and domestic partner rights, asked the court to deny review and leave intact an Oct. 5 ruling by the First District Court of Appeal in San Francisco that declared the law constitutional.

Mary McAlister, a lawyer with the conservative religious organization Liberty Counsel, said in a filing Monday that the plaintiffs “are now asking this court to assume the role of social engineer and to override the expressed will of the people of California that marriage is to continue to be defined as the union of one man and one woman.'’ The plaintiffs include a number of same-sex couples and the city of San Francisco.

The court has until mid-February to decide whether to review the case. If it grants review, it could hear the case next fall.

The briefs illustrate the differences between Lockyer and gay-rights opponents in the marriage case. The outgoing Democratic attorney general, a supporter of rights for gays and lesbians, has defended the marriage law by arguing that California is entitled to maintain a traditional definition of marriage while extending substantially equal rights to same-sex couples who register as domestic partners.

In Monday’s filing, Deputy Attorney General Christopher Krueger said the case gives the state Supreme Court a chance to show the rest of the nation a middle path in the “all-or-nothing battle between advocates of same-sex marriage and many of their opponents, who would deny same-sex couples not only the legal status of marriage but also the rights, benefits and responsibilities that are typically associated with marriage.'’

By contrast, the Campaign for California Families and another group opposed to same-sex marriage, the Proposition 22 Legal Defense and Education Fund, have argued that gays and lesbians can be excluded from marrying because children are better off with a biological father and mother. Lockyer has refused to make that argument, saying he disagrees with it and that it conflicts with California’s policy of equal rights.

The two groups took part in the early stages of the case, submitting briefs and arguing at hearings in defense of the marriage law. But the appeals court, in its October ruling, said the groups were not entitled to take part because their members would not suffer legal harm if same-sex marriages were recognized.

Both organizations have asked the state’s high court to restore them as parties, which would allow them to participate in hearings and appeal any unfavorable rulings. Otherwise they can submit only written arguments.

The appeals court’s 2-1 decision overturned a March 2005 ruling by Judge Richard Kramer of San Francisco Superior Court, who said the ban on same-sex marriage violates the fundamental right to marry the partner of one’s choice and also discriminates on the basis of sex.