Herrera vows action to enforce Prop 8’s invalidation after high court rules on standing

Ruling on jurisdictional question leaves intact U.S. District Court ruling that measure was unconstitutional-but Prop 8 proponents have disputed statewide application

SAN FRANCISCO (June 26, 2013) — Hailing today’s U.S. Supreme Court majority opinion that proponents of California’s Proposition 8 lacked standing to appeal a lower court ruling invalidating the measure as unconstitutional, San Francisco City Attorney Dennis Herrera today vowed that he will immediately move to enforce the order restoring marriage equality throughout California should another county dispute the ruling’s statewide application.

Prop 8 proponents have previously argued in their court briefs that a decision like today’s 5-to-4 high court ruling would necessarily limit the U.S. District Court’s judgment to only the two couples named as plaintiffs in the lawsuit, or to the Counties of Alameda and Los Angeles, which are named defendants. Herrera, who has forcefully disputed the legal theory in his own court briefs and memoranda to client city departments, signaled his resolve to continue litigating aggressively to ensure that marriage rights for same-sex couples are fully restored throughout California.

“I’m grateful for a decision that finally ends marriage discrimination against gay and lesbian couples, and that strikes down a law that has no place in 21st century California,” said Herrera. “But given arguments that Prop 8’s proponents have consistently advanced, my office is prepared to litigate immediately against any effort to limit or delay the restoration of marriage equality for all Californians.”

Today’s majority opinion, written by Chief Justice Roberts and joined by Justices Scalia, Ginsburg, Breyer, and Kagan, held that the U.S. Constitution’s Article III, which governs the federal judiciary, limits standing to appeal a district court judgment solely to parties that suffer a distinct and palpable injury. The ruling leaves intact an Aug. 4, 2010 decision by U.S. District Court Judge Vaughn Walker that the 2008 ballot measure that eliminated fundamental marriage rights for same-sex partners in California violated the U.S. Constitution’s due process and equal protection guarantees for lacking a rational basis and serving no legitimate state interest.

“The majority’s opinion that Prop 8 proponents lacked standing correctly applied well established principles governing federal appeals,” Herrera continued. “This is no minor technicality or convenient dodge; the majority is right on the law, exactly as we argued in our brief last February. After nearly a decade of litigation against the injustices of marriage discrimination, I’m honored to have worked alongside lead counsel Ted Olson and David Boies, the couples they represent, and all the dedicated advocates from the American Foundation for Equal Rights. Most of all, I couldn’t be more proud of the incredibly talented legal professionals of the San Francisco City Attorney’s Office who’ve worked so hard on this and so many other important cases.”

Herrera has served as co-counsel in the case since 2009, when the City and County of San Francisco intervened as a co-plaintiff alongside two California couples represented by Ted Olson and David Boies. The American Foundation for Equal Rights is the sole sponsored of the federal constitutional challenge, which is now known as Hollingsworth v. Perry. Herrera’s motion to join the challenge was granted on Aug. 19, 2009 by then-U.S. District Court Chief Judge Vaughn R. Walker, who held that San Francisco was the only public sector party prepared to present evidence and arguments for a governmental interest in marriage equality at trial.

The San Francisco City Attorney’s participation in the federal case continued the office’s years-long involvement on the issue. Herrera and a legal team that includes Chief Deputy City Attorney Therese Stewart have served as lead counsel or co-counsel in every iteration of the legal battle for marriage equality in California since February 2004, when the office first defended then-San Francisco Mayor Gavin Newsom in multiple lawsuits challenging the mayor’s decision to issue marriage licenses to same-sex couples. In the midst of defending those cases, Herrera sued to strike down the same-sex marriage exclusion in state courts. It was the first time in American history that a government had ever challenged the constitutionality of marriage laws that discriminate against same-sex partners, and it would ultimately result in the state Supreme Court’s landmark May 2008 ruling, In re: Marriage Cases, which secured marriage rights for same-sex partners in California. After California voters narrowly passed Proposition 8 to eliminate those rights in Nov. 2008, the City was among the co-plaintiffs to unsuccessfully challenge the amendment. San Francisco then joined plaintiffs in the Perry case, bringing in expert and lay witnesses for the federal trial with whom they had worked in the state court marriage litigation.

The procedurally complex, nearly decade-long legal battle has spanned six different cases, and involved briefing for more than fifty judges in the San Francisco Superior Courts, California Court of Appeal, California Supreme Court, U.S. District Court, the entire Ninth Circuit U.S. Court of Appeals, and the U.S. Supreme Court.

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