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News Release: 2013-07-12

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Herrera will fight Prop 8 proponents' 'desperate bid' to halt same-sex marriages

After 'ProtectMarriage.com' files motion in state Supreme Court to halt same-sex marriages with flawed technical reasoning, S.F. City Attorney readies opposition

SAN FRANCISCO (July 13, 2013) -- San Francisco City Attorney Dennis Herrera will promptly oppose a move by the proponents of Proposition 8 that seeks to block equal marriage rights for same-sex couples in California. The motion filed by ProtectMarriage.com in the state Supreme Court this morning names all California counties -- including San Francisco -- as defendants, and contends that Gov. Jerry Brown did not have the authority to direct county officials to stop enforcing Prop 8 because the measure had not been deemed unconstitutional by an appellate court. The U.S. Supreme Court's June 26 ruling, holding that the measure's sponsors lacked standing to appeal, left intact a U.S. District Court ruling that Prop 8 was unconstitutional. The petition filed with the state high court today is Hollingsworth v. O'Connell.

"This motion is a desperate obstruction tactic used in the vain hope of pursuing an unconstitutional agenda," said Herrera. "The opponents of the freedom to marry have chosen to ignore the Supremacy Clause of the Constitution, a U.S. Supreme Court ruling, and the well-settled California marriage case of Lockyer v. San Francisco, which they themselves celebrated at the time. Their motion has essentially no chance to succeed. The most basic concepts of American law tell us that a state court cannot and will not overrule the federal judiciary. The citizens of California are left wondering when these people will realize that, having lost the moral struggle years and years ago, they have now lost the legal struggle as well. Marriage equality is now the law in the State of California, and will remain so from this point onward. Together we will soon see the day when it is the law all across America."

The majority opinion in Hollingsworth v . Perry, written by Chief Justice Roberts and joined by Justices Scalia, Ginsburg, Breyer, and Kagan, held that the U.S. Constitution's Article III, which governs the federal judiciary, limits standing to appeal a district court judgment solely to parties that suffer a distinct and palpable injury, and declares that a measure's proponents can't step into the state's shoes to defend the measure in federal court. The ruling left intact an Aug. 4, 2010 decision by U.S. District Court Judge Vaughn Walker that the 2008 ballot measure that eliminated fundamental marriage rights for same-sex partners in California violated the U.S. Constitution's due process and equal protection guarantees for lacking a rational basis and serving no legitimate state interest.

Herrera has served as co-counsel in the case since 2009, when the City and County of San Francisco intervened as a co-plaintiff alongside two California couples represented by Ted Olson and David Boies. The American Foundation for Equal Rights is the sole sponsor of the federal constitutional challenge, which is now known as Hollingsworth v. Perry. Herrera's motion to join the challenge was granted on Aug. 19, 2009 by then-U.S. District Court Chief Judge Vaughn R. Walker, who held that San Francisco was the only public sector party prepared to present evidence and arguments for a governmental interest in marriage equality at trial.

The San Francisco City Attorney's participation in the federal case continued the office's years-long involvement on the issue. Herrera and a legal team that includes Chief Deputy City Attorney Therese Stewart have served as lead counsel or co-counsel in every iteration of the legal battle for marriage equality in California since February 2004, when the office first defended then-San Francisco Mayor Gavin Newsom in multiple lawsuits challenging the mayor's decision to issue marriage licenses to same-sex couples. In the midst of defending those cases, Herrera sued to strike down the same-sex marriage exclusion in state courts. It was the first time in American history that a government had ever challenged the constitutionality of marriage laws that discriminate against same-sex partners, and it would ultimately result in the state Supreme Court's landmark May 2008 ruling, In re: Marriage Cases, which secured marriage rights for same-sex partners in California. After California voters narrowly passed Proposition 8 to eliminate those rights in Nov. 2008, the City was among the co-plaintiffs to unsuccessfully challenge the amendment. San Francisco then joined plaintiffs in the Perry case, bringing in expert and lay witnesses for the federal trial with whom they had worked in the state court marriage litigation.

The procedurally complex, nearly decade-long legal battle has spanned six different cases, and involved briefing for more than fifty judges in the San Francisco Superior Courts, California Court of Appeal, California Supreme Court, U.S. District Court, the entire Ninth Circuit U.S. Court of Appeals, and the U.S. Supreme Court.

The complete procedural timeline for San Francisco's legal battle for marriage equality can be found on City Attorney Dennis Herrera's website at: http://www.sfcityattorney.org/index.aspx?page=23.

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Last updated: 7/12/2013 12:55:45 PM