Herrera Condemns Court of Appeal’s 2-1 Majority Opinion Upholding Discriminatory Marriage Laws

If Sustained by High Court, Appellate Level Ruling Would Represent ‘One of California’s Darkest Hours for Civil Rights’

SAN FRANCISCO (Oct. 5, 2006)-City Attorney Dennis Herrera today expressed strong disagreement with a 2-to-1 majority opinion by a California Court of Appeal panel upholding the constitutionality of marriage laws that discriminate against gay and lesbian couples. Today’s decision reverses a March 2005 trial court ruling striking down Family Code provisions that deny marriage rights to same-sex couples as violating equal protection guarantees of the California Constitution. Herrera said the City will ask the California Supreme Court to review today’s ruling.

The 64-page majority opinion authored by Justice William R. McGuiness and joined by Justice Joanne C. Parrilli said: “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. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings.”

In a powerfully-worded 51-page dissent, Justice J. Anthony Kline faulted his colleagues’ reasoning, saying: “the inescapable effect of the analysis the majority adopts is to diminish the humanity of the lesbians and gay men whose rights are defeated.”

Kline went on to say: “Gay men and lesbians are no less capable of enjoying and benefiting from the constitutionally significant aspects of marriage. Homosexual couples are as able as heterosexual couples to love and commit themselves to one another, to responsibly raise children, and to define for themselves and to express to the world the authenticity of their relationship. So too are they as able as other couples to benefit from the spiritual, religious, and emotional experience marriage best provides, and as deserving of the official respect and numerous other benefits the state confers upon the marital relationship.”

“This is a disappointing second-round in what we’ve always known to be a three-round fight,” said Herrera. “If today’s ruling were ultimately sustained by the state Supreme Court, it would represent one of California’s darkest hours for civil rights. This majority opinion ignores our most treasured Constitutional rights, and relies instead on weak reasoning to perpetuate discrimination against gays and lesbians and their families. This court has sadly abdicated its role as arbiter of what our Constitution requires. By contrast, I applaud Justice Kline for a wise, humane and powerful dissent. I believe his eloquence today will withstand the test of time, and ultimately prevail.”

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 continuing to issue 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 a similar suit 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 under court rules governing complex litigation before San Francisco Superior Court Judge Richard A. Kramer.

On March 14, 2005, Judge Kramer ruled that laws restricting marriage rights to opposite-sex couples violate equal protection guarantees in the California Constitution. Judge Kramer’s 27-page decision concluded that both sections of the state Family Code that exclude gay and lesbian couples from marriage “are unconstitutional under the California Constitution,” adding that “The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal.” The attorney general and conservative anti-gay organizations involved in the litigation appealed Kramer’s decision to the state Court of Appeal, which heard oral arguments in the case on July 10, 2006.

From the outset, Herrera has said his case “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.”

The City’s case before the Court of Appeal is City and County of San Francisco v. State of California et al. (Court of Appeal Case Number A110449). Private actions comprising the coordinated marriage cases are the following: Tyler et al. v. State of California (Court of Appeal Case Number A110450); Woo et al. v. State of California et al. (Court of Appeal Case Number A110451); Clinton et al. v. State of California et al. (Court of Appeal Case Number A110463); Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (Court of Appeal Case Number A110651); and Campaign for California Families et al. v. Newsom et al. (Court of Appeal Case Number A110652).

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