Foes of Gay Marriage Can’t Join Case

A Superior Court judge Thursday denied the request of same-sex marriage opponents to intervene in the city’s case challenging the constitutionality of state marriage laws, saying the group’s members would suffer no harm if gays and lesbians were allowed to wed.

Attorneys for the Proposition 22 Legal Defense and Education Fund had argued that the group should be permitted to participate in the case on behalf of the state because its members had voted for the successful ballot measure that defined marriage as heterosexual.

A successful challenge to state marriage laws would neutralize those votes, said Alliance Defense Fund lawyer Robert Tyler, who is representing the Proposition 22 organization.

Tyler also questioned state Atty. Gen. Bill Lockyer’s commitment to vigorous defense of state marriage laws, noting that Lockyer was considering a run for higher office and had publicly stated his opposition to laws that discriminate against gays and lesbians.

“We have an attorney general whose political perspective is far different from the one he has to defend,” Tyler argued.

A spokeswoman for Lockyer declined to discuss the attorney general’s legal strategy. But she reiterated his commitment to defending state law, and noted that he was simultaneously defending another state law that offers gay and lesbian couples sweeping domestic-partner benefits. The Proposition 22 group, which was founded by state Sen. William J. “Pete” Knight (R-Palmdale) to defend his ballot initiative, is challenging that law.

Lockyer’s office had remained neutral on whether the Proposition 22 group should be allowed to intervene.

“The attorney general defends state statutes, and he’s doing it on both of these different issues,” spokeswoman Hallye Jordan said. “If anything, it shows that he’s professional and carrying out his duties appropriately.”

But San Francisco Superior Court Judge James L. Warren said the interests of the Proposition 22 group did not meet the legal standard for an intervening party.

The city and county of San Francisco filed the lawsuit, which challenges the constitutionality of statutes that define marriage as between “a man and a woman.” Six same-sex couples and two gay advocacy organizations filed a similar suit against the state, and the two matters have been consolidated.

Though the gay and lesbian couples represented in the lawsuit are considered legally harmed by state marriage laws -- they are forbidden from marrying -- the marriage rights of the heterosexual members of Knight’s group will not be affected, no matter what happens in the case, Warren said in denying the request. Merely having a political or ideological interest in upholding the statute is not enough, he ruled.

Attorneys for the city and the gay couples challenging state marriage laws opposed the intervention by Knight’s group.

San Francisco’s mayor ordered licenses issued to gay and lesbian couples Feb. 12, and in four weeks more than 4,000 same-sex couples were married.

Last month, the California Supreme Court ordered the unions halted while it considered whether city officials had the right to violate state laws they interpreted as unconstitutional. Meanwhile, it left the door open for lawsuits to be filed in lower court challenging the constitutionality of the statutes.

Tyler, who called Warren’s ruling “a serious injustice to the people of California,” said he would consider an appeal.

But for now, the ruling means the positions against gay marriage held by the group probably will not be fully explored at trial.

Attorneys for the Alliance Defense Fund have said they intended to introduce declarations from social scientists on the negative effects of gay relationships on children of those unions and on evidence that the institution of marriage is designed around characteristics of heterosexual couples -- such as the ability to bear biological children -- that same-sex couples do not share. Lockyer is not likely to present that kind of evidence.