Herrera files response in Ninth Circuit in federal challenge to Proposition 8

Controversial amendment ‘is not rationally related to legitimate government interests’ in light of California’s constitutional guarantees
Response brief in Ninth Circuit Court of Appeals
Response brief in Ninth Circuit Court of Appeals

SAN FRANCISCO (Oct. 18, 2010)— City Attorney Dennis Herrera today filed the City’s brief with the Ninth Circuit Court of Appeals in the pending appeal from U.S. District Judge Vaughn Walker’s ruling striking down Proposition 8 under the federal Constitution. The City argues that Proposition 8 is “peculiarly irrational” under California law because it “removed only the honored stature of ‘marriage’ from same-sex couples, yet altered none of their state constitutional rights to the traditional incidents of marriage, including the right to form a family and raise children.”

“When you look at California law governing families and parenting, the hypothetical reasons proponents offer to justify Proposition 8 just don’t add up,” said Herrera. “Prop 8 perpetuates the poisonous notion that gay and lesbian couples, and the families they create, are inferior and harmful. Relegating lesbian and gay couples to an inferior relationship status has tremendous human costs, and fulfills no rational societal interest.”

Given that nothing in California’s family law or constitution—including Proposition 8 itself—expresses a preference for opposite-sex parenting over same-sex parenting, the City Attorney’s brief argues, the idea advanced by Proposition 8’s proponents that their measure promotes child rearing by opposite-sex couples is nonsensical. Nor does the argument made by Proposition 8 proponents that allowing same-sex couples to marry may “deinstitutionalize” marriage make any sense in California. Proposition 8 was not drafted to be retroactiv

e and thus left in place the 18,000 marriages of same-sex couples who married before the measure was an enacted. If those marriages have not “deinsitituitonalized” marriage, the brief contends, there is no reason to believe allowing other couples to marry will do so.

Herrera’s brief also argues that the true purpose of Proposition 8 was not about procreation, but “to avoid having anyone, and especially children, view gay relationships as ‘okay’ or as ‘the same’ as heterosexual relationships.”

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.