SAN FRANCISCO (April 2, 2007)\u2014City Attorney Dennis Herrera filed with the California Supreme
Court today the opening brief in his office\u2019s constitutional challenge to discriminatory state marriage
laws, detailing what he described as \u201ca long and shameful history of state-sponsored persecution of
homosexuality.\u201d The City is a lead plaintiff alongside couples throughout the state in a coordinated
action before the state\u2019s highest court that seeks to invalidate provisions of the California Family Code
denying marriage rights to same-sex partners.

\u201cA traditional injustice does not warrant perpetuation simply because it is traditional,\u201d Herrera said. \u201cIn
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\u2019s rightful role in interpreting it\u2014something the appellate court failed to do. Our
state\u2019s highest court has a long history of independence, wisdom and justice. And I am confident they
will honor that long history in this case.\u201d

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\u2014a prevailing party in the Court of Appeal\u2019s ruling upholding marriage
discrimination\u2014joined 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, \u201cEveryone has a
fundamental right to \u2018marriage,\u2019 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.\u201d

The Court of Appeal\u2019s 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\u2014who stayed his ruling pending review from higher courts\u2014ruled
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\u2019s choice.

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\u2019s 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
\u201casserts the long-held principle that discrimination is not merely detrimental to the minority it singles out,
but to the majority that would abide it,\u201d arguing that \u201cwithout 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.\u201d

\u201cAll of this shows that the State is correct when it contends the marriage exclusion is the product of tradition. But while we can be proud of many of the traditions we inherited from the western world, this is not one of them.\u201d (Page 19)

\u201cFar from retaining the same definition and meaning over the years, [marriage] has evolved
significantly\u2014often at the behest of the judiciary. At every stage, people expressed fears that change
would destroy marriage. But they were wrong. If courts had taken the approach advocated by the
state here\u2014namely, preserve tradition to avoid upsetting people\u2014marriage would no longer be
meaningful.\u201d (Page 19)

\u201cFurther, by denying marriage and relegating lesbian and gay couples to a separately named and
separately administered scheme created just for them, the State segregates them and their families
from the rest of society, continuing to marginalize them. This separation sends a powerful message\u2014
one that reinforces in the public mind the already-entrenched inferior status of lesbians and gay men.
The message is easily understood: the State will recognize, but it will not honor, lesbian and gay
family relationships.\u201d (Page 51)

\u201cIndeed, the marriage exclusion tells lesbians and gay men that they are less worthy than child
abusers, or sex offenders, or convicts in prison for murder. Because after all, those peopledo have
the right to get married.\u201d (Page 1-2)

Coordination Proceeding Special
Title (Rule 1550(b))
INREMARRIAGECASES

First Appellate District
No. A110449
(Consolidated on appeal with case
nos. A110540, A110451,
A110463, A110651, A110652)

San Francisco Superior Court Case
No. 429539
(Consolidated for trial with San
Francisco Superior Court Case No.
429548)

PETITIONER CITY AND COUNTY OF
SAN FRANCISCO'S OPENING BRIEF ON
THE MERITS

DENNIS J. HERRERA,State Bar #139669
City Attorney
THERESE M. STEWART,State Bar #104930
Chief Deputy City Attorney
DANNY CHOU,State Bar #180240
Chief of Appellate Litigation
SHERRI SOKELAND KAISER,State Bar # 197986
VINCE CHHABRIA,State Bar # 208557
Deputy City Attorneys
City Hall, Room 234
One Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682

BOBBIE J. WILSON,State Bar #148317
AMY MARGOLIN,State Bar # 168192
HOWARD, RICE, NEMEROVSKI,
CANADY, FALK & RABKIN
A Professional Corporation
Three Embarcadero Center, 7thFloor
San Francisco, CA 94111-4204