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San Francisco sues state over gay wedding ban

Officials challenge the constitutionality of Calif. Family Code

SAN FRANCISCO -- After sanctioning more than 2,800 gay marriages in the past week, the city said yesterday it is suing the state of California, challenging its ban on same-sex marriages on constitutional grounds."The city and county of San Francisco is going on the offensive today to protect the mayor's action" allowing gay marriage, City Attorney Dennis Herrera said. Two judges already are considering challenges from conservative groups seeking to halt the wave of same-sex marriages that began last Thursday. The city's lawsuit asks that those cases be consolidated into one.

Mayor Gavin Newsom said he does not regret giving out marriage licenses before the city filed a legal challenge to the state's marriage laws, but added that he is glad the question is now in the courts: "I think what we have done is affirm marriage here in San Francisco. We affirmed it because we are celebrating people coming together in their unions. I feel affirmed as a married man by what's happened here in San Francisco."

A lawyer for a group trying to halt gay marriages described the city's move as a delaying tactic.

"This is as much a maneuver to keep this in court and keep the issue alive as it is anything else," said Benjamin Bull, an attorney with the Alliance Defense Fund.

The city is asking Superior Court Judge James Warren to declare as unconstitutional three sections of the California Family Code that define marriage as a union between a man and a woman. Drawing a parallel with the 1940s, Herrera said California courts were among the nation's first to strike down laws banning interracial marriage.San Francisco's lawsuit was filed against the state of California and against two conservative family-values groups that have sued the city in a bid to block it from issuing marriage licenses to same-sex couples. City officials want the judge to determine whether barring same-sex couples from marrying violates the equal protection and due process clauses of the state constitution. In November, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a legal right to marry. The 4-to-3 majority in that case based their decision on the equal protection and due process provisions of the state constitution. Likening the ban on same-sex marriage to earlier bans on interracial marriage, Chief Justice Margaret H. Marshall said they were both rooted in prejudice. Under the ruling, Massachusetts must start recognizing gay marriages as of May 17.

On Tuesday, Warren gave the city the choice of ending the same-sex wedding march or returning to court in late March to show why the process has not been halted. The city said it would continue issuing such licenses until forced to stop.

Judge Ronald Quidachay is considering a lawsuit filed by another conservative group, the Campaign for California Families. He said Tuesday he was not prepared to issue a ruling, and scheduled another hearing for today.

Like the city, conservatives want the two cases consolidated into one, but they want Quidachay to hear it instead of Warren.

Newsom told reporters yesterday that the timing of the lawsuit was "good" because of a court hearing today that could result in a temporary halt to same-sex marriages in San Francisco. California Attorney General Bill Lockyer said yesterday that as the state's top lawyer he would defend Proposition 22, a ballot initiative restricting marriage to a man and a woman that became law in 2000 after voters overwhelmingly approved it. "It is the duty of my office to defend that law against this challenge by . . . San Francisco, and allow the courts to determine whether the city has acted illegally," said Lockyer, who is a Democrat.

Matt Coles, director of the American Civil Liberties Union's Lesbian and Gay Rights Project, said the Massachusetts case, rather than the San Francisco action, was more likely to survive legal challenges and lead to permanently recognized same-sex marriages.

Material from Reuters was included in this report.

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