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San Francisco challenges state's same-sex marriage ban in court

Inside San Francisco's City Hall, Gina Gatto, left, and April Stewart, embrace after being married.
Inside San Francisco's City Hall, Gina Gatto, left, and April Stewart, embrace after being married.

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SAN FRANCISCO, California (CNN) -- The city of San Francisco Thursday filed a lawsuit against the state of California, challenging the state law that defines marriage as being between one man and one woman only, the city attorney's office said.

"Same-sex couples who want the opportunity to sanctify their relationships and solemnize their relationships are entitled to the same protections under the law as opposite-sex couples," said City Attorney Dennis Herrera.

The action comes one week after newly elected Mayor Gavin Newsom ordered the county clerk to begin issuing marriage licenses to same-sex couples. Nearly 3,000 couples have taken advantage of it, despite the filing of two lawsuits against the practice.

Herrera said the grounds of the state constitutional challenge are "equal protection and due process."

"What we're asking for in our declaratory relief action ... is simply that the three sections of the California Family Code, which exclude same-sex marriage, be declared unconstitutional," Herrera said.

When asked if the state had rejected the same-sex marriage licenses as invalid, Herrera said he had not heard of any instances of that.

"We've said all along we think that they're legal," he responded.

The attorney said he hopes to consolidate the cases against same-sex marriage pending against the city with the city's lawsuit against the state. A hearing on that matter is scheduled for Friday at 11 a.m. PT (2 p.m. ET).

"I would anticipate that this case is going to have a long life," Herrera replied when asked about the national ramifications of the city's move.

One of the suits against the city was to resume in San Francisco County Superior Court at 2 p.m. PT (5 p.m. ET) Friday. Judge Ronald Quidachay had continued the case from Tuesday. That lawsuit was filed by the Campaign for California Families and the Alliance Defense Fund, which contend the city's issuing of same-sex marriage licenses violates current state law. They asked the judge to stop the practice immediately.

A separate suit, filed by the Proposition 22 Legal Defense and Education Fund, was continued until March 29 to allow city attorneys time to prepare to show cause as to why Newsom's action is allowable.

Across the street from the Superior Court is City Hall, where lines of people snaked out the front door and down the steps as gays and lesbians from inside and outside the state hurried to get their relationships validated in the eyes of the law.

Newsom has said that marriage between same-sex couples is "inevitable" and that anything less is "fundamentally wrong."

Almost two-thirds of Americans do not think same-sex marriages should be recognized as legally valid, according to a new CNN/USA Today/Gallup poll.

But the 1,006 people polled on Monday and Tuesday were almost split over whether individual states or the federal government should determine laws regarding marriages between gays or lesbians.

President Bush Wednesday repeated his belief that marriage should be restricted to heterosexual couples, adding that he was "troubled" by what was happening in San Francisco.

The president said the definition of marriage should be made by the people -- not by "activist judges." (Full story)

Robert Tyler, of the Alliance Defense Fund said the law is on his side.

"What we're doing is right, we are on the right side of the law," he said. "The mayor is on the wrong side of the law."

Dan Johnson, who this week married his partner of 11 years, Bill Hinson, said he doesn't want to give up his marriage license.

"Not without a fight. It was a wonderful feeling to get married," he said. "I don't want it taken away now."

Supporters of same-sex marriage say denying gay and lesbian couples marriage licenses denies them basic rights.

"We're talking about state inheritance, we're talking about state property issues, we're talking about children's issues, we're talking about power of attorney," Ralph Neas, president of the group People for the American Way, said.

"It's an equal protection issue. It's a fundamental civil rights issue," he added.

Critics of same-sex unions say those rights can be afforded through other means, and homosexual couples don't need a marriage certificate to validate them.

Genevieve Wood, vice president of the Communications Family Research Council, said that redefining marriage might be a slippery slope.

"If we're going to get into redefining marriage, why would we stop at just allowing homosexual marriage?" she asked.

"There are people out there ... who want to engage in polygamy, they think that's a good family structure. There are others who think that group marriages are a family structure," Wood added.

CNN correspondent David Mattingly contributed to this report


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