Herrera Files Opening Brief
in California Supreme Court on Marriage Equality

Brief Details 'Long and Shameful History
of State-Sponsored Persecution'
in Seeking to Invalidate Discriminatory Marriage Laws

From the Office of City Attorney Dennis Herrera

April 2, 2007

SAN FRANCISCO - City Attorney Dennis Herrera filed with the California Supreme Court today the opening brief in his office's constitutional challenge to discriminatory state marriage laws, detailing what he described as "a long and shameful history of state-sponsored persecution of homosexuality." The City is a lead plaintiff alongside couples throughout the state in a coordinated action before the state's highest court that seeks to invalidate provisions of the California Family Code denying marriage rights to same-sex partners.

"A traditional injustice does not warrant perpetuation simply because it is traditional," Herrera said. "In making our case against marriage discrimination today, 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 reassert the judiciary's rightful role in interpreting it -- something the appellate court failed to do. Our state's highest court has a long history of independence, wisdom and justice. And I am confident they will honor that long history in this case."

The seven-member high court is evaluating three separate issues in the case: whether the marriage exclusion violates the equal protection rights of lesbians and gay men; whether the exclusion violates the right to personal autonomy protected by the privacy clause of the California Constitution; and whether the exclusion violates the fundamental right to marry protected by the California Constitution. The court granted review on Dec. 20, 2006, following an unusual circumstance in which then-California Attorney General Bill Lockyer -- a prevailing party in the Court of Appeal's ruling upholding marriage discrimination -- joined the City and same-sex couples in urging the high court to take the case. On Oct. 5, 2006, an appellate court panel issued a 2-to-1 majority opinion holding that, "Everyone has a fundamental right to 'marriage,' but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner."

The Court of Appeal's ruling overturned a previous decision by San Francisco Superior Court Judge Richard A. Kramer on March 14, 2005 that found legal provisions excluding same-sex couples from marriage unconstitutional. Kramer -- who stayed his ruling pending review from higher courts -- ruled that existing state marriage laws unconstitutionally discriminated on the basis of sex, and unconstitutionally impinged on the fundamental right to marry the person of one's choice.

Herrera's direct constitutional challenge to state marriage laws in City and County of San Francisco vs. State of California was filed on March 11, 2004, within an hour of the California Supreme Court's order prohibiting San Francisco officials from issuing marriage licenses to same-sex couples at the direction of Mayor Gavin Newsom. The lawsuit made San Francisco the first government entity in American history to challenge the constitutionality of state marriage laws that discriminate against gay and lesbian couples. The City's case was later consolidated with similar suits filed the following day by the National Center for Lesbian Rights on behalf of same-sex couples, Equality California and Our Family Coalition. That consolidated case was then coordinated with other constitutional challenges from Los Angeles and San Francisco before Judge Kramer.

From the outset, Herrera has said his case on behalf of the entire City and County of San Francisco "asserts the long-held principle that discrimination is not merely detrimental to the minority it singles out, but to the majority that would abide it," arguing that "without full recognition of gay and lesbian families through marriage, San Francisco is limited in its ability to protect the equal rights of its citizens, and harmed in ways tangible and otherwise by an injustice that has no place in 21st Century California."

Notable Quotes

Key highlights from the City's brief filed with the California Supreme Court today include the following:

* "All of this shows that the State is correct when it contends the marriage exclusion is the product of tradition. But while we can be proud of many of the traditions we inherited from the western world, this is not one of them." (Page 19)

* "Far from retaining the same definition and meaning over the years, [marriage] has evolved significantly -- often at the behest of the judiciary. At every stage, people expressed fears that change would destroy marriage. But they were wrong. If courts had taken the approach advocated by the state here -- namely, preserve tradition to avoid upsetting people -- marriage would no longer be meaningful." (Page 19)

* "Further, by denying marriage and relegating lesbian and gay couples to a separately named and separately administered scheme created just for them, the State segregates them and their families from the rest of society, continuing to marginalize them. This separation sends a powerful message -- one that reinforces in the public mind the already -- entrenched inferior status of lesbians and gay men. The message is easily understood: the State will recognize, but it will not honor, lesbian and gay family relationships." (Page 51)

* "Indeed, the marriage exclusion tells lesbians and gay men that they are less worthy than child abusers, or sex offenders, or convicts in prison for murder. Because after all, those people do have the right to get married." (Page 1-2)

Chief Deputy City Attorney Therese M. Stewart, Chief of Appellate Litigation Danny Chou, and Deputy City Attorneys Sherri Sokeland Kaiser and Vince Chhabria were lead authors on the brief. The case is In Re Marriage Cases, Supreme Court of the State of California, Case No. S147999.

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