City argues that California’s Prop 8 was based on moral disapproval of gays and lesbians, similar to Colorado amendment that U.S. Supreme Court struck down in 1996
SAN FRANCISCO (June 18, 2009) — City Attorney Dennis Herrera today filed a friend of the court brief on behalf of the City and County of San Francisco in support of a federal lawsuit brought by two California couples challenging the validity of Proposition 8, the state constitutional amendment that eliminated the fundamental right of marriage for gay and lesbian citizens in California.
The City’s amicus curiae brief filed with the U.S. District Court in San Francisco this evening argues that the controversial initiative amendment narrowly approved by California voters in Nov. 2008 violates the equal protection guarantee of the U.S. Constitution because it deprives a single class of citizens of constitutional rights for no purpose other than animus and moral disapproval. In doing so, Herrera argues, California’s Proposition 8 is directly analogous to a 1992 state constitutional amendment in Colorado, which similarly identified gays and lesbians for disparate treatment, and which was later invalidated by the U.S. Supreme Court. Writing for a 6-to-3 majority in the high court’s landmark 1996 ruling in Romer v. Evans, Justice Anthony M. Kennedy held that Colorado’s Amendment 2 was unconstitutional because it “seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”
“The constitutional challenge to Proposition 8 in federal court persuasively argues that the measure’s only conceivable purpose was to withhold honor and respect from the relationships of same-sex couples, and to do so to them alone,” Herrera said. “This kind of discrimination against lesbians and gay men as a class has been remedied before in our federal jurisprudence — in Romer v. Evans, in Lawrence v. Texas, and in other cases. The plaintiffs here make a compelling case for the federal courts to ensure that justice is done in California, and I am pleased to offer San Francisco’s expertise to support their efforts.”
Herrera’s brief additionally supports the plaintiffs’ motion for a preliminary injunction, which if granted would immediately require local governments in California to resume issuing civil marriage licenses to same-sex couples. In May 2008, a California Supreme Court decision struck down previous state laws that defined marriage solely as a union between a man and a woman. That discriminatory marriage exclusion was later enshrined into the California Constitution with the passage of Proposition 8 on Nov. 5, 2008, which the state high court upheld on May 26, 2009. Four days prior to the California Supreme Court’s ruling on Prop 8, the amendment was challenged in U.S. District Court by two same-sex couples: Kristin M. Perry and Sandra B. Stier of Berkeley, Calif., and Paul T. Katami and Jeffrey J. Zarrillo of Burbank, Calif. They are represented by an impressive-if-improbable legal team of one-time political foes: Theodore Olson and David Boies, who faced off in the Bush v. Gore case that decided the outcome of the 2000 presidential election.
The case is Perry et al v. Schwarzenegger et al, U.S. District Court, Northern District of California, Case No. 09-CV-2292 VRW. It is before Chief U.S. District Judge Vaughn R. Walker.