Herrera Vows to File Brief in Support of A.G. in Threatened Lawsuit Over Wording of Prop 8

S.F. City Attorney blasts marriage foes for ‘playing hide-the-ball with voters, obscuring truth that Prop 8 would eliminate a constitutional right’

SAN FRANCISCO (July 29, 2008) — City Attorney Dennis Herrera today announced his intention to file a brief with the state trial court that will consider a legal action threatened by marriage equality foes over the wording of the title and summary of Proposition 8, an initiative constitutional amendment that would eliminate the right of same-sex couples to marry in California. The Los Angeles Times this morning reported that proponents of Proposition 8 would file suit today to block the change made to the language of the measure’s ballot wording by California Attorney General Edmund G. Brown Jr.

Herrera represented the City and County of San Francisco as a lead plaintiff in the legal challenge that resulted in the May 15, 2008 state Supreme Court decision recognizing that marriage is a fundamental right guaranteed to all Californians, “whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” As San Francisco’s elected chief legal official, Herrera’s duties include the preparation of titles and summaries for all local ballot measures. The legal standard of review for summaries of measures submitted to voters — which applies to local as well as state initiatives — requires that the measure be described in an accurate and impartial manner. Only if the legal challenge proves by clear and convincing evidence that the title and summary are false, misleading or otherwise unlawful will a court reject the Attorney General’s language.

“Marriage equality foes are playing hide-the-ball with voters, obscuring the truth that Prop 8 would eliminate a constitutional right,” Herrera said. “The Attorney General has the same ethical duty I do to describe the legal effect of ballot measures fully and in a manner that accurately reflects the state of the law. With their threatened lawsuit, marriage equality opponents would have the state’s chief legal officer do their political dirty work. If they want to lie to voters about their discriminatory intent — and it’s clear they do — they should leave that to their campaign, and keep it out of the courts.”

The ballot title of the measure is: “Proposition 8: Eliminates right of same-sex couples to marry. Initiative constitutional amendment.” Its summary reads: “Changes California Constitution to eliminate right of same-sex couples to marry. Provides that only a marriage between a man and a woman is valid or recognized in California.” The measure additionally includes a fiscal impact statement, which reads: “Fiscal Impact: Over the next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact to state and local governments.”

The City and County of San Francisco was the first government in American history ever to sue for marriage equality, asserting in its March 2004 constitutional challenge a broad societal interest in invalidating the discriminatory marriage exclusion in California statutes. Included among the evidence Herrera submitted for the trial court record in 2004 was a declaration and financial analysis by then-San Francisco City Controller Ed Harrington, which found that “The combined estimated impact of the inability of same-sex couples to marry on the City’s annual budget is $15.3 to $19.6 million per year.” Public sector costs estimated to have been imposed by the marriage exclusion were not solely attributed to lost sales taxes and foregone revenues, but also to increased costs to taxpayers in terms of public benefits — from public assistance to health care — when two adults are legally barred from an institution that would otherwise impose on them financial responsibility for one another and, in many cases, for one another’s children.

The adverse fiscal impact of marriage discrimination on state and local government taxpayers was thought to be a factor in decisions by a number of cities and counties to support San Francisco’s case over the course of four years. By the time the marriage case was finally decided by the state high court in May 2008, twenty-one California cities and counties were united in support of marriage equality for same-sex partners. Included among them were 7 of the state’s 8 largest cities: Los Angeles, San Diego, San Jose, San Francisco, Long Beach, Sacramento and Oakland.

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