It is not against the California constitution to keep marriage between a man and a woman, said California Attorney General Bill Lockyer in a defense brief Friday to be considered in a suit challenging the state’s marriage laws banning same-sex “marriage.”

Plaintiffs in the case are twelve homosexual couples who argue that California’s law limiting marriage only between a man and a woman is unconstitutional because it discriminates against homosexuals by not allowing them the right to marry.

But in his 37-page filing, Lockyer rejected such contentions.

"Rights are considered fundamental only if they are deeply rooted and firmly entrenched in our state's history and tradition," he wrote. "There is simply no deeply rooted tradition of same-sex marriage in California or in any other state."

"The state has a strong interest in valuing and maintaining its deeply rooted history and traditions," Lockyer added. "California's effort to find a balance between affording rights and benefits to same-sex couples, while maintaining a common understanding of marriage, does not run up against the Constitution."

While Lockyer said it was up to the Legislature to change existing marriage laws, he noted that state lawmakers have made an effort to provide the same marriage benefits of heterosexual couples to homosexual couples who register as domestic partners.

"Committed and loving relationships between two individuals deserve recognition under California law," he said. "The obligations and benefits that attend such relationships form the cornerstone of nurturing families and a stable society.

“For more than a century, however, the people of California have affirmed through initiative and by the actions of their elected state legislators that those obligations and benefits are available through marriage to opposite-sex couples, and, now, through domestic partnerships to same-sex couples."

A lawyer representing 12 couples acknowledged that 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," said Jon Davidson, senior attorney of the Lambda Legal Defense and Education Fund. "I am disappointed about his view that not allowing same-sex couples to marry is not discrimination against gay people."

Although Lockyer’s is defending the state’s current marriage law, one pro-family leader suggests his heart is not into it and his bias toward homosexuals is obvious.

"He's saying marriage is for a man and a woman, but (he supports) gay marriage by another name," Randy Thomasson, Executive Director of Campaign for California Families, told Contra Costa Times.

"Again, the attorney general is not a law man, he's an activist. He's showing his liberal activist heart while knowing that he has to uphold the law."

A hearing for the consolidated case has been set for Oct. 26 and a decision may be delivered by the close of the year.

The cases are City and County of San Francisco v. State of California, 04-429-539, and Woo v. Lockyer, 04-504-038.