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C
ITY
A
 TTORNEY
D
ENNIS
H
ERRERA
NEWS RELEASE
FOR IMMEDIATE RELEASE CONTACT: MATT DORSEY THURSDAY, FEB. 21, 2013 (415) 554-4662 [MORE]
Herrera files Prop 8 brief in U.S. Supreme Court,capping 9-year legal battle for marriage equality
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 morethan 50 state and federal judges, City Attorney Dennis Herrera today filed in the U.S. Supreme Courtwhat is likely to be San Francisco’s final brief advocating for equal marriage rights for lesbian and gaycouples. The 62-page pleading in the potentially landmark federal challenge to Proposition 8 addresseskey issues before the nation’s highest court, including whether the 2008 ballot measure that eliminatedmarriage rights for same-sex couples in California violates the U.S. Constitution’s Equal ProtectionClause, and whether the measure’s proponents had legal standing to pursue their appeals through thefederal courts.Herrera’s brief meticulously rebuts legal arguments in defense of Prop 8’s legitimacy, concluding that themeasure’s actual justification—“asserting the inferiority of same-sex couples”—was discriminatory andplainly 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-sexcouples was the purpose and effect of Proposition 8. But relegating gay couples to a lesser status simplyto brand them as different and less worthy than opposite-sex couples is not a legitimatepurpose…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 forProposition 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 toraise their unintended children in wedlock, Herrera’s brief argues that the measure actually harms familiesby 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-sexcouples cannot marry as well,” the City’s brief contends. “Nor can Proposition 8 be justified as anexercise in promoting the well-being of children or families. It has no effect on gay couples’ ability toraise children, and in fact it denies tens of thousands of children who have same-sex parents the securityand esteem of living in a marital family.”Among the brief’s sharpest rebuttals is Herrera’s counterpoint to arguments advanced most recently bythe petitioners: that Prop 8 should be upheld—even if the court were to find an Equal Protection
 
CITY ATTORNEY DENNIS HERRERA NEWS RELEASEPAGE 2 OF 2 THURDAY, FEBRUARY 21, 2013violation—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 protectthe constitutional rights of minorities from encroachment by an unsympathetic majority. Theresponsibility to protect individual rights does not transfer to the political process when the disputehappens 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.’
WestVirginia 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, whofamously squared off in
Bush v. Gore
in 2000, serve as lead counsel in the case. Herrera successfullyintervened as a co-plaintiff in the challenge in August 2009, renewing San Francisco’s years-longadvocacy for the compelling public sector interest in ending marriage discrimination against lesbian andgay couples. At the trial level in U.S. District Court, Herrera’s legal team provided extensive evidencethat state and local governments derive significant societal and economic benefits when same-sex partnersenjoy equal marriage rights—and, conversely, that denying such rights inflicts grave harm on the LGBTcommunity, 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 tostrike down marriage laws that discriminate against same-sex partners. Over the next six years, it wouldbe joined by almost two-dozen other cities and counties statewide—representing more than 17 millionCalifornians—in support of marriage equality and in opposition to Proposition 8. City Attorney Herrera’soffice is the only office to have played a role in every iteration of the legal battle for marriage equality inCalifornia since 2004, when the office first defended then-San Francisco Mayor Gavin Newsom’sdecision 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 legalendeavor that would ultimately succeed in the California Supreme Court’s landmark
In re: MarriageCases
ruling in 2008. After California voters narrowly passed Proposition 8 in Nov. 2008, the City wasamong the co-plaintiffs to unsuccessfully challenge the amendment in the California Supreme Court. TheCity then joined plaintiffs in the
Perry
case, bringing in expert and lay witnesses they had worked withduring the state court marriage litigation. The procedurally complex nine-year legal battle has involvedsix 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. The complete procedural timeline for San Francisco’s legal battle for marriage equality can be found onCity Attorney Dennis Herrera’s website at: http://www.sfcityattorney.org/index.aspx?page=23.###
 
No. 12-144
================================================================
In The
Supreme Court of the United States
---------------------------------
---------------------------------DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,MARTIN F. GUTIERREZ, MARK A. JANSSON,PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL,
 Petitioners,
v.KRISTIN M. PERRY, SANDRA B. STIER,PAUL T. KATAMI, JEFFREY J. ZARRILLO,CITY AND COUNTY OF SAN FRANCISCO,
 Respondents.
---------------------------------
---------------------------------
On Writ Of Certiorari To The United StatesCourt Of Appeals For The Ninth Circuit
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BRIEF OF RESPONDENTCITY AND COUNTY OF SAN FRANCISCO
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S
 AN
F
RANCISCO
C
ITY 
A 
TTORNEY 
’
S
O
FFICE
 D
ENNIS
J. H
ERRERA 
 City AttorneyT
HERESE
M. S
TEWART
 Chief Deputy City Attorney
Counsel of Record
C
HRISTINE
V 
 AN
A 
KEN
  A 
ILEEN
M. M
C
G
RATH
  V 
INCE
C
HHABRIA 
 M
OLLIE
M. L
EE
 S
 ARA 
J. E
ISENBERG
 L
EILA 
K. M
ONGAN
 Deputy City AttorneysCity Hall Room 234One Dr. Carlton B. Goodlett Pl.San Francisco, California 94102Telephone: (415) 554-4800Facsimile: (415) 554-4763E-Mail: therese.stewart@sfgov.org 
Counsel for RespondentCity and County of San Francisco
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