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News Release: 2010-08-04

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S.F.'s arguments, evidence lent key assist to federal ruling that Prop 8 is unconstitutional

Failure to relate 'a legitimate state interest' pivotal to U.S. District Court finding that Prop 8 violates U.S. Constitution's 14th Amendment

SAN FRANCISCO (Aug. 4, 2010) -- A federal court decision that today found Proposition 8 in violation of the U.S. Constitution's Due Process and Equal Protection Clauses relied on key arguments and evidence presented by City Attorney Dennis Herrera's office about the adverse governmental consequences of the 2008 ballot measure, which eliminated fundamental marriage rights for same-sex partners in California.

Herrera's motion to intervene in the case originally brought by the American Foundation for Equal Rights on behalf of two California couples was granted by Judge Walker nearly a year ago. In doing so, the court held that the City and County of San Francisco was the only party in the case -- including the Governor and State Attorney General -- then willing to represent a public sector interest on the question of the initiative's validity. At trial, Herrera's office provided extensive evidence that state and local governments derive societal and economic benefits when same-sex couples enjoy equal marriage rights -- and, conversely, that denying such rights inflicts grave harm on lesbians and gay men, which in turn imposes significant costs on government and society. The City's case made a showing that when governments participate in discrimination against their own citizens, there can be little hope of eradicating private discrimination.

In holding that the "trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex," Judge Walker's ruling relied on several public sector harms proven at trial by the City. According to the ruling:

      "[City and County of San Francisco Chief Economist, Dr. Edmund A.] Egan and [University of Massachusetts Amherst economics professor Dr. M .V. Lee] Badgett testified that Proposition 8 harms the State of California and its local governments economically. Egan testified that San Francisco faces direct and indirect economic harms as a consequence of Proposition 8. Egan explained that San Francisco lost and continues to lose money because Proposition 8 slashed the number of weddings performed in San Francisco. Egan explained that Proposition 8 decreases the number of married couples in San Francisco, who tend to be wealthier than single people because of their ability to specialize their labor, pool resources and access state and employer-provided benefits. Proposition 8 also increases the costs associated with discrimination against gays and lesbians. Proponents challenged only the magnitude and not the existence of the harms Egan identified. Badgett explained that municipalities throughout California and the state government face economic disadvantages similar to those Egan identified for San Francisco.
     "For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents' proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives." (p 23-24)

City Attorney Dennis Herrera offered the following statement in reaction to the decision: "Today's ruling strikes a resonant chord against discrimination that should not only withstand appeal, but change hearts and minds. I'm extremely grateful to Judge Walker for a thorough and well reasoned decision that powerfully affirms the U.S. Constitution's promise of equal protection. I know I speak for everyone in my office when I say how honored we are to have the opportunity in this case to work alongside the American Foundation for Equal Rights, and its founder, Chad Griffin; an outstanding legal team led by the legendary Ted Olson and David Boies; and, of course, the couples they represent in Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo. We're also indebted to all the witnesses we called who lent their expertise so generously. I'm particularly thankful to San Diego Mayor Jerry Sanders and his daughter, Lisa, for sharing a deeply personal story that goes to the very heart of why this case matters."

Herrera and his chief deputy, Therese M. Stewart, personally played key supporting roles in the federal trial alongside lead counsel, Theodore B. Olson and David Boies, and were active partners in identifying experts best qualified to present the factual basis for the plaintiffs' claims that Proposition 8 unconstitutionally discriminates against lesbian and gay couples. Among expert witnesses called by plaintiffs in the federal trial, five were witnesses Herrera's office had worked with previously: M .V. Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts Amherst, testified about the private harms and public costs caused by Proposition 8; George Chauncey, Ph.D., a professor of history at Yale University, testified about the history of discrimination against the LGBT community; Nancy F. Cott, Ph.D., a professor of American history at Harvard University, testified about the history of marriage as a legal institution; Gregory M. Herek, Ph.D., a professor of psychology at the University of California at Davis, testified about the immutable nature of sexual orientation and harms linked to anti-gay stigma; Edmund A. Egan, Ph.D., the City and County of San Francisco's Chief Economist, testified about the nature and magnitude of public sector costs imposed by the denial of equal marriage rights. Ryan Kendall, a lay witness, testified about his experiences as a teenager whose parents placed him into sexual orientation conversion therapy.

In January, Herrera conducted the direct examination of San Diego Mayor Jerry Sanders, a former police chief and father to a lesbian daughter. Sanders offered powerful testimony from his years of experience as a law enforcement officer, Republican politician, city official and father, and how those ultimately led to his unexpected and moving announcement in 2007 that he would approve the City of San Diego's amicus brief in support of San Francisco's constitutional challenge to discriminatory state marriage laws. Judge Walker's ruling quoted Mayor Sanders' testimony about his own recriminations over originally opposing the resolution for marriage equality: "I was saying that one group of people did not deserve the same dignity and respect, did not deserve the same symbolism about marriage," Sanders testified. (p. 27)

The City and County of San Francisco was the first government in American history ever to sue to strike down marriage laws that discriminate against same-sex partners, and the San Francisco City Attorney's Office is the only party to have played a role in virtually every iteration of the legal battle for marriage equality in California. The City Attorney first entered the fight for equal marriage rights in defense of San Francisco Mayor Gavin Newsom's decision to issue marriage licenses to same-sex couples in 2004. Later, the office sued to strike down the anti-same sex marriage exclusion in state courts, a legal endeavor that ultimately succeeded with the California Supreme Court's landmark In re: Marriage Cases ruling in 2008. Later that year, after California voters narrowly passed Proposition 8, the City was among the co-plaintiffs to challenge the amendment in the California Supreme Court; that effort was unsuccessful. The City's motion to intervene as a co-plaintiff in the current federal challenge was granted by Judge Walker on August 19, 2009.

The case is Perry et al v. Schwarzenegger et al, U.S. District Court, Northern District of California, Case No. 09-CV-2292 VRW.

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Last updated: 8/10/2010 3:00:55 PM