Herrera Sues State in Original Action, Forcing Constitutional Questions On Marriage Between Same-Sex Couples

City’s Immediate Lawsuit in Wake of State Supreme Court Decision Today Contends That California Marriage Provisions Violate Equal Protection Clause, Due Process Clause, and Privacy Provisions of State Constitution

Following a decision by the California Supreme Court today to exercise “original jurisdiction” that will effectively bypass the lower courts in two lawsuits over the issuance of same-sex marriage licenses in San Francisco, City Attorney Dennis Herrera filed a lawsuit against the State of California in San Francisco Superior Court late this afternoon seeking declaratory relief to determine the constitutionality of laws prohibiting same-sex couples from marrying in California.

“While we’re disappointed with the interim stay of marriages between same-sex couples here in San Francisco, we must recognize that our overriding purpose is to ensure equality for all Californians seeking to marry-not merely those performed within our City limits,” Herrera said. “With our complaint this afternoon, San Francisco seeks an unequivocal declaration from the courts in California that state provisions that prohibit marriage between same-sex couples are unconstitutional.”

In its order this afternoon, the California Supreme Court noted that “[t]his stay does not preclude the filing of a separate action in superior court raising a substantive constitutional challenge to the current marriage statutes.” City Attorney Herrera welcomed the high court’s invitation to address the merits of the City’s constitutional arguments.

In its filing late this afternoon, the City contends that three sections of the California Family Code prohibiting marriage between eligible same-sex couples are void and unenforceable under article I, section 7 of the California Constitution in that they discriminate on the basis of sexual orientation and gender in violation of the State Equal Protection Clause, and that they violate liberty and privacy interests in the state Constitution. Herrera’s suit argues that such a declaration from the court is necessary so that the City, Mayor Gavin Newsom and County Clerk Nancy Alfaro may ascertain their rights and duties as public servants.

The high court also ordered an “interim stay” of marriages between same-sex couples in San Francisco. The City has accordingly discontinued issuing and recording marriage licenses for same-sex couples in compliance with the Court’s order.

The same-sex marriage cases pending before the Supreme Court of California are Lockyer vs. City & County of San Francisco (S122923) and Lewis vs. Alfaro (S122865).