San Francisco Moves to Intervene in Federal Challenge to Proposition 8

City Attorney Herrera says his office is ‘singularly well-prepared’ to help ‘put anti-gay discrimination on trial based on the facts’

SAN FRANCISCO (July 23, 2009) — City Attorney Dennis Herrera today petitioned a U.S. District Court Judge to allow the City and County of San Francisco to intervene as a party plaintiff in a federal constitutional challenge to Proposition 8, the state constitutional amendment that eliminated the fundamental right of marriage for gay and lesbian citizens in California. The American Foundation for Equal Rights seized national attention when it filed the original federal lawsuit in May on behalf of two California couples, in part for its impressive-if-improbable legal team of one-time political foes Theodore B. Olson and David Boies, who faced off in the Bush vs. Gore U.S. Supreme Court case that decided the outcome of the 2000 presidential election.

The City’s motion to intervene comes in the wake of U.S. District Court Chief Judge Vaughn R. Walker’s June 30 procedural order in the case, which directed litigants to develop significant factual evidence for the Court to adjudicate the merits of the action. Herrera’s motion notes that his office was the lone plaintiff to either advocate for or present a substantial factual record in the landmark Marriage Cases, submitting extensive evidence and proposed findings on strict scrutiny factors and factual rebuttals to long claimed justifications for marriage discrimination. Walker’s order identified questions in four major areas to be addressed at trial, including factual issues related to the appropriate level of scrutiny; the state’s interests in enforcing Proposition 8; whether Proposition 8 discriminates based on sexual orientation or gender; and the discriminatory intent underlying the narrowly-approved measure. Many of the City’s 18 declarations from a dozen experts in its previous case directly address issues raised in the federal court’s recent order, according to the motion filed today. Still other issues are areas of expertise among the dozens of other experts interviewed by the City in its prior litigation involving marriage equality and other LGBT civil rights protections San Francisco has enacted over the years.

“San Francisco is a singularly well-prepared co-plaintiff in this case, both in terms of the wealth of evidence it has already developed, and its unique public sector perspective in having to enforce a discriminatory law,” said Herrera. “Under Judge Walker’s stewardship, this federal action has taken the exact turn that the City alone advocated in our previous litigation. We are long overdue to put anti-gay discrimination on trial based on the facts. The San Francisco City Attorney’s Office has the experience and expertise to aggressively assist in doing precisely that.”

The American Foundation for Equal Rights is spearheading the federal lawsuit challenging Proposition 8 on behalf of 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. Filed in U.S. District Court for the Northern District of California on May 22, 2009, the suit led by attorneys Theodore Olson of Gibson, Dunn & Crutcher LLP and David Boies of Boies, Schiller & Flexner LLP argues that Proposition 8 “denies the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution.” On May 15, 2008, the landmark California Supreme Court ruling In re Marriage Cases, in which the City and County of San Francisco was a lead plaintiff, struck down previous state statutes 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. The case is Perry et al v. Schwarzenegger et al, U.S. District Court, Northern District of California, Case No. 09-CV-2292 VRW.

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