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Bans on gay marriage called legal

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SAN FRANCISCO — Laws limiting marriage to a man and a woman do not run afoul of California's constitution, Attorney General Bill Lockyer declared Friday in a long-awaited legal opinion that sought to avoid offending either side in the gay marriage debate.

In answering two lawsuits seeking to put California on par with Massachusetts, where gay marriage is legal, Lockyer said it was up to voters or the Legislature to decide whether to change "the common and traditional understanding" of matrimony that "pre-dates the founding of this state or nation."

"There is simply no deeply rooted tradition of same-sex marriage in California or in any other state," he said, while acknowledging that "committed and loving relationships between two individuals deserve recognition under California law."

The lawsuits claim California's marriage laws violate the state constitution's anti-discrimination provisions, an argument Lockyer rejected in the 37-page brief. He noted that state lawmakers have taken significant steps toward granting full spousal benefits to gay couples who register as domestic partners.

The plaintiffs sued in March after the California Supreme Court ordered San Francisco officials to stop issuing marriage licenses to gay couples.

The plaintiffs are relying heavily on the same arguments that persuaded Massachusetts' highest court to legalize gay marriage there this year — namely, that laws limiting marriage to a union between a man and a woman discriminate against gays, violating their civil rights and several constitutional guarantees.

Jon Davidson, who is helping represent 12 suing couples as a senior attorney with Lambda Legal Defense and Education Fund, said that in his view, Lockyer "is putting up a vigorous defense."

"It looks like the attorney general is making the strongest case the state can make to defend the restriction against same-sex couples from marrying given the current state of California law," Davidson said. "I am disappointed about his view that not allowing same-sex couples to marry is not discrimination against gay people."

Both supporters and opponents of gay marriage were eager to see how Lockyer, a Democrat who has expressed interest in running for governor in 2006, planned to navigate the politically volatile question.

By taking the position that any change in marriage eligibility criteria must come from the Legislature, however, Lockyer essentially advanced the same legal strategy that Massachusetts Attorney General Thomas Reilly, a fellow Democrat, unsuccessfully used to prevent gay couples from being able to wed in his state.