City Attorney calls same-sex marriage ban ‘peculiarly irrational and inexplicable by anything other than prejudice’
SAN FRANCISCO (March 1, 2012) — City Attorney Dennis Herrera today filed San Francisco’s opposition to a move by sponsors of Proposition 8 for a rehearing by a larger, 11-judge panel of the U.S. 9th Circuit Court of Appeals on the constitutionality of the controversial ballot measure that eliminated marriage rights for same-sex couples in California. Prop 8’s backers petitioned for the en banc review on Feb. 21, two weeks after a 2-to-1 appellate court ruling that the discriminatory measure violated rights guaranteed under the U.S. Constitution’s 14th Amendment.
Herrera’s 15-page pleading forcefully reiterates the view shared by three federal judges that Prop 8 is unconstitutional, insisting that the Ninth Circuit’s Feb. 7 decision fails to merit review by a larger panel because of its focus on California’s unique circumstances and its consistency with well-established judicial precedent.
“Proposition 8 is peculiarly irrational and inexplicable by anything other than prejudice,” the brief argues. “Because States cannot create arbitrary classes among their citizens, or classify citizens simply to make some less equal to others, Proposition 8 violates the Equal Protection Clause.”
Herrera’s brief additionally dismisses as “categorically unreasonable” Prop 8 proponents’ argument that U.S. District Court Judge Vaughn R. Walker’s Aug. 2010 ruling should be vacated because the judge is “gay and…in a committed same-sex relationship.”
San Francisco intervened alongside the American Foundation for Equal Rights in its federal challenge to Prop 8 on Aug. 19, 2009 for the purpose of demonstrating the public sector’s interest in marriage equality. In 2004, the San Francisco City Attorney’s Office became the first government entity ever to litigate against marriage laws that discriminate against same-sex partners, and has played a central role in every case involving the issue in California for the last eight years.
The present case is: Perry v. Brown, United States Court of Appeals for the Ninth Circuit, case numbers 10-16696 and 11-16577.
PDF of the Opposition Brief to 9th Circuit Rehearing on Prop 8 presskit (March 1, 2012)