Herrera Sharply Disputes Prop 8 Campaign’s Push for ‘Blank Check to Discriminate’

Reply Brief on Behalf of Local Governments, Married Couples Defends Principles of Judicial Independence, Argues Against Retroactivity

SAN FRANCISCO (Jan. 5, 2009) — City Attorney Dennis Herrera today filed a reply brief that sharply challenges arguments by lawyers for the Proposition 8 political campaign that even the slimmest of electoral majorities in California may enact discriminatory amendments to the state constitution that would render meaningless such foundational principles as equality, inalienable rights and judicial independence. The 85-page brief was filed with the California Supreme Court this afternoon on behalf of fifteen local governments and seven married couples challenging the validity of Proposition 8, the narrowly-approved constitutional amendment that would eliminate the fundamental right of marriage for gay and lesbian citizens, and potentially nullify marriages of thousands of lawfully wedded couples. As private parties, the married couples are represented pro bono by outside counsel from the San Francisco law firm of Howard Rice Nemerovski Canady Falk & Rabkin.

“The political activists who brought us Proposition 8 are now asking the Supreme Court for a blank check to discriminate — a judicial declaration of open season on disfavored minority groups, with no state constitutional protection to stand in the way,” said Herrera. “The attorneys for this movement have revealed a harrowing vision: a California where fear-mongering campaigns and out-of-state donors call the shots, and where the judiciary stands aside. I have great faith in the California Supreme Court to recognize the far-reaching danger Prop 8 poses to all constitutional rights, and strike it down — just as an earlier high court did in the 1960s when an electoral majority voted to allow housing discrimination against African Americans and other minorities.”

Today’s reply brief by local governments and married couples also reasserts that even if the discriminatory proposition were held to be constitutional, existing case law establishes that it could only operate prospectively absent advance notice to voters that it applied retroactively. Lawyers for the Proposition 8 campaign are seeking to nullify all existing marriages of same-sex couples.

“The law is settled in this area,” said Amy Margolin, a director with Howard Rice. “Proposition 8 cannot apply retroactively unless there is very clear evidence that the voters intended it to. But there isn’t. Nothing in the election materials told voters that they were being asked to abolish people’s existing marriages. So all of the marriages performed before Proposition 8 was passed are still valid. Moreover, this is a good government issue. The initiative process doesn’t work if the voters aren’t told what they are voting on. Nowhere in the official ballot pamphlet — or in the campaign in favor of Proposition 8 — were voters told that Proposition 8 would undo existing marriages. If the Supreme Court holds that Proposition 8 is not retroactive, as we urge it to do, that would send the right message to future proponents of initiative measures: ‘be honest and candid with the voters, or else.'”

Were Proposition 8 upheld by the high court as a valid amendment, Herrera’s brief notes, the state constitution “would not even protect minority groups that enjoy the most heightened constitutional protection from invidious discrimination.” It additional argues that “the courts would be stripped of their most important constitutional responsibility — to serve as the final bulwark against oppression of constitutionally protected minority groups,” in clear violation of the separation of powers principle.

Additional briefing is expected today from lawyers for the Proposition 8 political campaign, led by former Whitewater Special Prosecutor Kenneth W. Starr, whose controversial $40 million taxpayer-funded investigation into President Clinton in the late 1990s luridly documented charges of sexual liaisons with a White House intern. Starr previously served as legal counsel to a coalition of religious groups, including the Mormon Church and National Association of Evangelicals, in unsuccessfully opposing equal marriage rights in the case, In re Marriage Cases, 43 Cal. 4th 757 (2008).

The original public sector legal challenge to Proposition 8, filed by San Francisco, the City of Los Angeles and the County of Santa Clara the day after the Nov. 4 general election, asserted that such a foundational redefinition of equal protection and the role of the judiciary in safeguarding minorities from being deprived of constitutional rights could not be accomplished by a simple constitutional amendment, but would likely require a more procedurally elaborate constitutional revision. California Attorney General Edmund G. Brown Jr.’s subsequent answer brief, filed on Dec. 19, argued that Proposition 8’s evisceration of inalienable rights would be impermissible even by constitutional revision.

Local governments that have joined the public sector legal challenge since its original filing 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. Married couples who have joined 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. They and other couples provided declarations describing the devastating effects of the ruling for which Starr advocates-upholding the initiative and applying it retroactively to invalidate their marriages.

According to the Supreme Court’s Nov. 19, 2008 order, applications for amicus curiae briefs, together with the proposed briefs themselves, are due on Thursday, Jan. 15, 2009. Replies to amicus briefs are due on Wednesday, Jan. 21. No date has yet been set for oral arguments in the case, but a news release from the Administrative Office of the Courts that accompanied the high court’s Nov. 19 order 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).

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