San Francisco City Attorney files Marriage Equality brief with California Supreme Court


City Attorney Dennis Herrera filed with the California Supreme Court today the opening brief in his office’s constitutional challenge to discriminatory state marriage laws, detailing what he described as “a long and shameful history of state-sponsored persecution of homosexuality.”

The City is a lead plaintiff alongside couples throughout the state in a coordinated action before the state’s highest court that seeks to invalidate provisions of the California Family Code denying marriage rights to same-sex partners.

“A traditional injustice does not warrant perpetuation simply because it is traditional,” Herrera said.

“In making our case against marriage discrimination today, we are asking the California Supreme Court not only to assert the rights of equality and privacy uniquely enshrined in our state Constitution, but to reassert the judiciary’s rightful role in interpreting it—something the appellate court failed to do. Our state’s highest court has a long history of independence, wisdom and justice. And I am confident they will honor that long history in this case.”

The seven-member high court is evaluating three separate issues in the case: whether the marriage exclusion violates the equal protection rights of lesbians and gay men; whether the exclusion violates the right to personal autonomy protected by the privacy clause of the California Constitution; and whether the exclusion violates the fundamental right to marry protected by the California Constitution.

The court granted review on Dec. 20, 2006, following an unusual circumstance in which then-California Attorney General Bill Lockyer—a prevailing party in the Court of Appeal’s ruling upholding marriage discrimination—joined the City and same-sex couples in urging the high court to take the case.

On Oct.5, 2006, an appellate court panel issued a 2-to-1 majority opinion holding that, “Everyone has a fundamental right to ‘marriage,’ but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner.”

The Court of Appeal’s ruling overturned a previous decision by San Francisco Superior Court Judge Richard A. Kramer on March 14, 2005 that found legal provisions excluding same-sex couples from marriage unconstitutional. Kramer—who stayed his ruling pending review from higher courts—ruled that existing state marriage laws unconstitutionally discriminated on the basis of sex, and unconstitutionally impinged on the fundamental right to marry the person of one’s choice.

Herrera’s direct constitutional challenge to state marriage laws in City and County of San Francisco vs. State of California was filed on March 11, 2004, within an hour of the California Supreme Court’s order prohibiting San Francisco officials from issuing marriage licenses to same-sex couples at the direction of Mayor Gavin Newsom.

The lawsuit made San Francisco the first government entity in American history to challenge the constitutionality of state marriage laws that discriminate against gay and lesbian couples.

The City’s case was later consolidated with similar suits filed the following day by the National Center for Lesbian Rights on behalf of same-sex couples, Equality California and Our Family Coalition. That consolidated case was then coordinated with other constitutional challenges from Los Angeles and San Francisco before Judge Kramer.

From the outset, Herrera has said his case on behalf of the entire City and County of San Francisco “asserts the long-held principle that discrimination is not merely detrimental to the minority it singles out, but to the majority that would abide it,” arguing that “without full recognition of gay and lesbian families through marriage, San Francisco is limited in its ability to protect the equal rights of its citizens, and harmed in ways tangible and otherwise by an injustice that has no place in 21st Century California.”

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