Amended Petition Challenging Prop 8 Adds Local Governments, Married Couples

Seven Lawfully Wedded Same-Sex Couples to Address Retroactivity, Joining Local Governments Serving More Than 17.2 Million Californians

SAN FRANCISCO (Dec. 10, 2008) — City Attorney Dennis Herrera today submitted an amended petition to the California Supreme Court that brings to fifteen the number of local governments challenging the validity of Proposition 8, the narrowly-approved constitutional amendment that would eliminate the fundamental right of marriage for gay and lesbian citizens. The 68-page pleading additionally seeks to add seven married couples as petitioners in the action to address a question, posed by the high court, about Proposition 8’s effect on the marriages of lawfully wedded same-sex couples should the validity of the controversial measure be upheld. As private parties, the couples are represented by pro bono outside counsel from the San Francisco-based law firm of Howard Rice Nemerovski Canady Falk & Rabkin.

Like the original petition filed the day after the Nov. 4 general election, the parties assert that the California Constitution’s equality provisions do not allow a bare majority of voters to use the amendment process to strip politically disfavored groups of their constitutional rights. Such a profound redefinition of equal protection and the role of the judiciary, petitioners argue, would require a more procedurally elaborate constitutional revision rather than a simple constitutional amendment. The newly filed petition, which is included with a motion for leave to file it, additionally argues that even if Proposition 8 were held to be constitutional, settled case law establishes that it could only operate prospectively absent a clear advance indication to voters that the measure applied retroactively.

Local governments that have joined as parties since the City and County of San Francisco, the City of Los Angeles and the County of Santa Clara filed their legal challenge on Nov. 5 are the counties of Alameda, Los Angeles, Marin, San Mateo and Santa Cruz; and the cities of Fremont, Laguna Beach, Oakland, San Diego, Santa Cruz, Santa Monica and Sebastopol. To date, the public sector legal challenge to Proposition 8 comprises local governments representing more than 17.2 million Californians, according to state population estimates.[i] Married couples joining the case as privately represented petitioners are Helen Zia and Lia Shigemura; Ed Swanson and Paul Herman; Zoe Dunning and Pam Grey; Marian Martino and Joanna Cusenza; Bradley Akin and Paul Hill; Emily Griffen and Sage Andersen; and Suwanna Kerdkaew and Tina M. Yun.

“Proposition 8 sought to do something that no constitutional amendment has ever succeeded in doing in our history: to strip a fundamental right from a protected class of citizens,” said Herrera. “If allowed to stand, Prop 8 so devastates the principle of equal protection that it would endanger the basic rights of any potential electoral minority — even for protected classes based on gender, race and religion. It would mean that a bare majority of voters could enshrine any manner of discrimination against any unpopular group, and our state constitution would be powerless to stop it. I am hopeful that the Supreme Court will recognize what a profoundly threatening precedent Proposition 8 poses to all our constitutional rights, and strike it down. I am deeply grateful to have the continued expertise and support of Howard Rice in this important effort, and I commend them for their generosity as pro bono counsel.”

“We’re honored to be working alongside the City and County of San Francisco once again to help protect the civil rights of all Californians,” said Amy Margolin, a partner at Howard Rice Nemerovski Canady Falk & Rabkin. “The most critical question facing the California Supreme Court about Proposition 8 is whether our state’s constitution allows a slim majority of voters to repeal basic, fundamental constitutional rights of a politically unpopular minority. That strikes at the very core of our state’s guarantee of equal protection, and so we think the answer is no and hope the Court strikes Proposition 8 down and upholds the rights of all gay and lesbian Californians,” said Margolin. “The Court also has asked for briefing on the more subsidiary question of whether Proposition 8 applies retroactively,” she continued, “and the seven married couples who seek to join the City’s case are directly affected by that issue and present a compelling case that Proposition 8 does not affect anyone’s existing marriage.”

The state high court in its Nov. 19 order directed California Attorney General Edmund G. Brown Jr. and an intervening private party that was the official proponent of the embattled amendment to file briefs in defense of Proposition 8’s validity by Dec. 19. Opposing counsel for both the state and intervenors have confirmed that they will not oppose the motion Herrera filed today to amend the petition. Petitioners in cases representing California local governments and married and unmarried same-sex couples would be required to submit reply briefs by Jan. 5, 2009. The Supreme Court did not set a date for oral arguments in the case, but an accompanying news release from the Administrative Office of the Courts noted that oral arguments “potentially could be held as early as March 2009.”

The public sector case is City and County of San Francisco et al. v. Mark B. Horton, et al. (S168078). Other cases by private parties currently before the court are: Strauss v. Horton (S168047) and Tyler v. State of California (S168066).