Herrera Joined by Los Angeles, Santa Clara Counterparts in Suing to Invalidate Prop 8

Leader of S.F.’s original constitutional challenge says amendment ‘if allowed to stand…devastates the principle of equal protection’

SAN FRANCISCO (Nov. 5, 2008) — City Attorney Dennis Herrera today joined Los Angeles City Attorney Rocky Delgadillo and Santa Clara County Counsel Anne C. Ravel in filing a petition for a writ of mandate with the California Supreme Court to invalidate Proposition 8, an initiative constitutional amendment that intends to strip gay and lesbian citizens of their fundamental right to marry in California. The 28-page suit filed with the high court in San Francisco this afternoon argues that the California Constitution’s equal protection provisions do not allow a bare majority of voters to use the amendment process to divest politically disfavored groups of constitutional rights. Such a sweeping redefinition of equal protection would require a constitutional revision rather than a mere amendment, the petition argues. Article XVIII of the California Constitution provides that a constitutional revision may only be accomplished by a constitutional convention and popular ratification, or by legislative submission to the electorate.

Today’s civil action by city and county governments follows a similar action filed earlier in the day by the National Center for Lesbian Rights on behalf of same-sex couples. Herrera pledged to lead an aggressive effort to enlist additional support in the civil litigation from other California cities and counties.

“The issue before the court today is of far greater consequence than marriage equality alone,” Herrera said. “Equal protection of the laws is not merely the cornerstone of the California Constitution, it is what separates constitutional democracy from mob rule tyranny. If allowed to stand, Prop 8 so devastates the principle of equal protection that it endangers the fundamental rights of any potential electoral minority — even for protected classes based on race, religion, national origin and gender. The proponents of Prop 8 waged a ruthless campaign of falsehood and fear, funded by millions of dollars from out-of-state interest groups. Make no mistake that their success in California has dramatically raised the stakes. What began as a struggle for marriage equality is today a fight for equality itself. I am confident that our high court will again demonstrate its principled independence in recognizing this danger, and in reasserting our constitution’s promise of equality under the law.”

Herrera represented the City and County of San Francisco as a lead plaintiff in the original legal challenge that resulted in the landmark state Supreme Court decision earlier this year recognizing marriage as a fundamental right guaranteed to all Californians, “whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” More than simply toppling a marriage exclusion that discriminated against millions of gay men and lesbians, the high court’s May 15, 2008 ruling established gays and lesbians as a suspect class under the California Constitution’s equal protection clause, including it among protected classes subject to a standard of strict scrutiny for judicial review.

The City and County of San Francisco was the first government entity in American history ever to sue for marriage equality, asserting in its March 2004 constitutional challenge a broad societal interest to strike down the marriage exclusion in California statutes. By the time the marriage cases were finally decided by the state high court more than four years later, fully twenty-one California cities and counties had joined San Francisco in support of marriage equality for same-sex partners. In total, some 7 of the state’s 8 largest cities united for the successful effort: Los Angeles, San Diego, San Jose, San Francisco, Long Beach, Sacramento and Oakland. Herrera has pledged a similar effort in the lawsuit filed today by San Francisco, Santa Clara County and the City of Los Angeles to enlist additional support and participation from other California cities and counties.