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Thursday, February 21, 2013

Dennis Herrera Presents City's Argument Against Prop. 8 in U.S. Supreme Court Brief

Posted By on Thu, Feb 21, 2013 at 2:23 PM

City Attorney Dennis Herrera
  • City Attorney Dennis Herrera

"Asserting the inferiority of same-sex couples was the purpose and effect of Proposition 8," City Attorney Dennis Herrera states in a brief filed today in the U.S. Supreme Court. "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."

The document, essentially a 62-page consolidation of every legal argument supporting same-sex marriage, is "likely to be San Francisco's final brief advocating for equal marriage rights for lesbian and gay couples," according Herrera's office.

It comes almost exactly a month before the Justices will hear oral arguments over the constitutionality of California's Proposition 8, the 2008 ballot measure that banned same-sex marriage before being ruled unconstitutional by the U.S. Ninth Circuit Court of Appeals last February.

"In many ways, this case is about a name," Herrera argues. "But what a name it is."

The meat of his position, which effectively serves as the voice of San Francisco for the March 26 proceedings, is that Prop. 8 serves no practical purpose other than to discriminate against same-sex couples by preventing them from attaching the label "marriage" to their relationship, and reaping the accompanying legal and social benefits.

"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," he wrote.

There are few people better qualified to present the city's case for gay marriage than Herrera, who has litigated on the issue for more than nine years. Gay people were allowed to marry in San Francisco in 2004, when then-Mayor Gavin Newsom began issuing licenses for same-sex couples. Soon after, Herrera, as city attorney, began defending the new policy against injunctions filed by people seeking to keep marriage between man and woman. A few years later, after Prop. 8 passed, Herrera played a major role in the subsequent legal opposition as it meandered through the courts.

With that, a brief taste of the brief:

Petitioners contend that the purpose of Proposition 8 is to reserve the honor of marriage as an incentive to opposite-sex couples, to encourage them to raise their accidental children in wedlock. Any effect on the rights of gay couples, they claim, is merely an unavoidable consequence of the traditional definition of marriage. The problem with this argument is that it says nothing about why, once gay couples received the right to marry in California, their right had to be rescinded for marriage to remain an incentive for opposite-sex couples to take responsibility for their children. It is implausible that more opposite-sex couples will marry, and have children in wedlock, if same-sex couples cannot marry as well. 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.

And if ya don't know, now ya know.

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Albert Samaha


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