City asks state to legalize same-sex unions 

San Francisco City Attorney Dennis Herrera, along with other civil rights groups, filed opening briefs with the California Supreme Court on Monday challenging state law that maintains marriage as an institution between a man and a woman.

The move is the first legal step toward a court hearing before the state’s seven high court justices, which could come by the end of the year. The state, now defended by California Attorney General Jerry Brown, has until June 1 to file a response to the opening briefs.

California offers domestic partnerships to same-sex couples, which include similar benefits to marriage, within the state.

In The City’s brief, Herrera said that by relegating same-sex couples to an institution separate from marriage, it treats them as second-class citizens.

"We are asking the California Supreme Court not only to assert the rights of equality and privacy uniquely enshrined in our state Constitution, but to assert the judiciary’s rightful role in interpreting it — something the appellate court failed to do," Herrera said.

The California Supreme Court agreed to hear the case after the California Court of Appeal, last October, reversed a March 2005 trial court ruling that said to deny marriage to same-sex couples unconstitutionally discriminates on the basis of sexual orientation and violates the fundamental right to marry.

The state will argue that it’s not unconstitutional for California to offer same-sex couples domestic partnerships while "maintaining the traditional definition of marriage," Deputy Attorney General Christopher Krueger said, who added that Californians voted to maintain the definition of marriage as between a man and a woman only when they passed Proposition 22 in 2000 with a 61.4 percent majority.

San Francisco’s legal battle against the state over gay marriage started after Mayor Gavin Newsom decided to authorize marriage licenses for same-sex couples in February 2004. Within an hour of the state’s ordering The City to stop issuing marriage licenses on March 11, 2004, Herrera filed The City’s constitutional challenge.

Other organizations — including the American Civil Liberties Union and the National Center for Lesbian Rights — have also filed suit in support of gay marriage and their case is being heard together with The City’s.

beslinger@examiner.com

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Bonnie Eslinger

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