Herrera Files Final Brief with Supreme Court in City’s Challenge to Marriage Exclusion

Answer Concludes Briefing, Sets Stage for Oral Arguments in Constitutional Challenge to Marriage Laws that Discriminate Against Gay and Lesbian Couples

SAN FRANCISCO (Nov. 13, 2007) — City Attorney Dennis Herrera today filed the City’s consolidated answer to amicus curiae briefs in his constitutional challenge to discriminatory marriage laws in California, a filing that is expected to conclude formal briefing to the state Supreme Court and set the stage for the scheduling of oral arguments in the coming months. The City and County of San Francisco 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 that exclude same-sex couples from marriage rights.

The City’s response to friend of the court briefs filed in defense of discriminatory marriage laws takes issue with what has emerged as a central theme in the State Attorney General’s legal argument before the high court: that the Court should base its decision on a fear of political backlash rather than constitutional principles. Indeed, one such amicus brief went so far as to urge the court to take the “political winds into account” in upholding the marriage exclusion.

“The state and its allies seem to have coalesced around a strategy that views the California Supreme Court as politically pliant and bereft of principle — and in so doing, I think they have fundamentally underestimated this court,” said Herrera. “Notwithstanding the dramatic shift in public support for marriage equality among cities and counties since we filed this case, the judiciary is and always has been an independent and coequal branch of government that eschews the influence of politics and adheres to constitutional principle. In concluding our briefing today, we ask the Supreme Court not only to assert the rights of equality and privacy uniquely enshrined in the California Constitution, but to stand for the judiciary’s rightful role in interpreting that Constitution. Our state’s highest court has a long history of independence, wisdom and justice, and I am confident they will honor that history here.”

The Attorney General’s “political expediency” argument also drew sharp responses from several leading authorities on judicial independence, including Professor Jesse H. Choper of Boalt Hall School of Law. In an amicus brief in support of the City, Professor Choper argued: “For a court to decline protection until popular attitudes have reached that point of consensus at which its decisions will be readily accepted is to shirk its essential duty and contradict its critical function as the government agency of last resort for the guardianship of constitutional liberties.”

Following on the historic significance of San Francisco’s first-ever government litigation against the state to invalidate marriage laws that discriminate against gay and lesbian partners, California’s marriage equality case has been increasingly distinguished from similar cases in other states by the nationally unprecedented breadth of support from other cities and counties. With the case headed for what is expected to its decisive conclusion, seven of California’s ten largest municipalities have joined in support of marriage equality: Los Angeles, San Diego, San Jose, San Francisco, Long Beach, Sacramento and Oakland. Other governmental supporters include: the cities of Berkeley, Cloverdale, Cotati, Davis, Palm Springs, Santa Monica, Santa Rosa, Sebastopol, Signal Hill and West Hollywood; the counties of Marin, San Mateo, Santa Clara and Santa Cruz; and the Town of Fairfax.

After granting review on Dec. 20, 2006, the seven-member high court is evaluating whether the exclusion of lesbians and gay men from marriage violates State Constitutional guarantees of equal protection, privacy and liberty. 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 decision overturned San Francisco Superior Court Judge Richard Kramer’s ruling on March 14, 2005, which held that legal provisions excluding same-sex couples from marriage are unconstitutional. Kramer-who stayed his ruling pending review from higher courts-found 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 San Francisco Superior Court Judge Richard A. Kramer.

The case is In Re Marriage Cases, Supreme Court of the State of California, Case No. S147999.

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