Ballot measure’s overriding purpose of ‘asserting the inferiority of same-sex couples’ renders it discriminatory, unconstitutional
SAN FRANCISCO (Feb. 21, 2013) — After nine years of litigation in a half-dozen cases involving more than 50 state and federal judges, City Attorney Dennis Herrera today filed in the U.S. Supreme Court what is likely to be San Francisco’s final brief advocating for equal marriage rights for lesbian and gay couples. The 62-page pleading in the potentially landmark federal challenge to Proposition 8 addresses key issues before the nation’s highest court, including whether the 2008 ballot measure that eliminated marriage rights for same-sex couples in California violates the U.S. Constitution’s Equal Protection Clause, and whether the measure’s proponents had legal standing to pursue their appeals through the federal courts.
Herrera’s brief meticulously rebuts legal arguments in defense of Prop 8’s legitimacy, concluding that the measure’s actual justification — “asserting the inferiority of same-sex couples” — was discriminatory and plainly unconstitutional when it was enacted: “As the messages of the Proposition 8 campaign showed, and as its peculiar effect on a cherished name alone confirms, asserting the inferiority of same-sex couples was the purpose and effect of Proposition 8. But relegating gay couples to a lesser status simply to brand them as different and less worthy than opposite-sex couples is not a legitimate purpose…Extinguishing the equal stature of gay people’s relationships was not simply a side effect of Proposition 8; it was the measure’s overriding purpose. And the justifications Petitioners offer for Proposition 8 are so far removed from its actual effects that it is impossible to credit them.”
Rebutting petitioners’ contention that Prop 8 created a necessary incentive for heterosexual couples to raise their unintended children in wedlock, Herrera’s brief argues that the measure actually harms families by denying equality to children of same-sex couples.
“It is implausible that more opposite-sex couples will marry, and have children in wedlock, if same-sex couples cannot marry as well,” the City’s brief contends. “Nor can Proposition 8 be justified as an exercise in promoting the well-being of children or families. It has no effect on gay couples’ ability to raise children, and in fact it denies tens of thousands of children who have same-sex parents the security and esteem of living in a marital family.”
Among the brief’s sharpest rebuttals is Herrera’s counterpoint to arguments advanced most recently by the petitioners: that Prop 8 should be upheld — even if the court were to find an Equal Protection violation — because same-sex marriage rights are the focus of political debate throughout the country. “Petitioners’ argument derogates the most important role this Court serves in our democracy: to protect the constitutional rights of minorities from encroachment by an unsympathetic majority. The responsibility to protect individual rights does not transfer to the political process when the dispute happens to be ‘controversial.’ Quite the contrary. In this circumstance more than any other, constitutional rights ‘may not be submitted to vote; they depend on the outcome of no elections.’ West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).”
The American Foundation for Equal Rights filed the current challenge now called Hollingsworth v. Perry (U.S. Supreme Court No. 12-144) in May 2009 on behalf two California couples who sought to marry: Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo. Theodore B. Olson and David Boies, who famously squared off in Bush v. Gore in 2000, serve as lead counsel in the case. Herrera successfully intervened as a co-plaintiff in the challenge in August 2009, renewing San Francisco’s years-long advocacy for the compelling public sector interest in ending marriage discrimination against lesbian and gay couples. At the trial level in U.S. District Court, Herrera’s legal team provided extensive evidence that state and local governments derive significant societal and economic benefits when same-sex partners enjoy equal marriage rights — and, conversely, that denying such rights inflicts grave harm on the LGBT community, which in turn harms government and society at large.
In 2004, the City and County of San Francisco became the first government in American history to sue to strike down marriage laws that discriminate against same-sex partners. Over the next six years, it would be joined by almost two-dozen other cities and counties statewide — representing more than 17 million Californians — in support of marriage equality and in opposition to Proposition 8. City Attorney Herrera’s office is the only office to have played a role in every iteration of the legal battle for marriage equality in California since 2004, when the office first defended then-San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to same-sex couples in February of that year in several lawsuits. Shortly after, Herrera sued to strike down the anti-same sex marriage exclusion in state courts, a legal endeavor that would ultimately succeed in the California Supreme Court’s landmark In re: Marriage Cases ruling in 2008. After California voters narrowly passed Proposition 8 in Nov. 2008, the City was among the co-plaintiffs to unsuccessfully challenge the amendment in the California Supreme Court. The City then joined plaintiffs in the Perry case, bringing in expert and lay witnesses they had worked with during the state court marriage litigation. The procedurally complex nine-year legal battle has involved six different cases before more than fifty judges in San Francisco Superior Courts, the California Court of Appeal, the California Supreme Court, the U.S. District Court, the entire Ninth Circuit U.S. Court of Appeal, and now the U.S. Supreme Court.
San Francisco’s U.S. Supreme Court Prop 8 Brief Presskit (Feb. 21, 2013)