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San Francisco City Attorney Dennis Herrera

Photo by Luke Thomas

From the Office of City Attorney Dennis Herrera

November 12, 2008

Nation’s Most Populous County Joins — for the First Time — the Legal

Defense of Equal Protection, Fight for Marriage Equality in California

LOS ANGELES — City Attorney Dennis Herrera today hailed the passage of a motion by the Los Angeles County Board of Supervisors instructing the County Counsel there to take immediate steps to join litigation to uphold the equal rights of all California residents by challenging the constitutionality of Proposition 8. The action assures that the County of Los Angeles will be the fourth local government along with San Francisco, the City of Los Angeles and Santa Clara County to join a petition originally filed with the California Supreme Court last Wednesday arguing that the state constitution’s equal protection provisions do not allow a bare majority of voters to use the amendment process to divest politically disfavored groups of constitutional rights. With more than 10 million residents, Los Angeles County is the most populous county in the nation. It had not previously been involved in the legal fight for marriage equality as a party or amici.

City Attorney Herrera, who is a lead counsel in the public sector legal effort, was first to address the five-member board in support of the motion this morning. Said Herrera:

“No matter what your view of same-sex marriage, the passage of Proposition 8 has pushed California to the brink of a constitutional crisis, and it’s important to understand why. This measure sought to do something that no constitutional amendment has ever done in our history: to strip a fundamental right from a protected class of citizens. In doing so, it did not merely undo a narrowly disfavored Supreme Court decision. Its effect is nowhere near so simple or elegant.

“Rather, it upended a doctrine of separation of powers deeply rooted in our system of governance; it trounced upon the independence of our state’s judiciary; and it eviscerated the most foundational principle of our state’s constitution.

“If allowed to stand, Prop 8 would so devastate the principle of equal protection that it could endanger the fundamental rights of any potential electoral minority — even for protected classes based on race, religion, national origin and gender.

“It would mean that a bare majority of voters could enshrine any manner of discrimination against any unpopular group — and our state constitution would be powerless to disallow it.

“Let us be clear: equal protection of the laws is what separates constitutional democracy from mob rule tyranny. It is a principle reaching back eight centuries to the Magna Carta. And it is what guided the founding of our state and our nation.”

The motion was sponsored by Los Angeles County Supervisors Zev Yaroslavsky and Gloria Molina. Voting in support of the motion were: Board of Supervisors Chair Yvonne Burke and Supervisors Yaroslavsky and Molina. Supervisors Don Knabe and Michael D. Antonovich were not present for the vote.

Los Angeles City Attorney Rocky Delgadillo joined Herrera and others in speaking in support of the motion. Santa Clara County Counsel Ann M. Ravel is an additional co-counsel in the effort. Together, the petition by local governments argues that such a sweeping redefinition of equal protection would require a constitutional revision rather than a mere amendment. Article XVIII of the California Constitution provides that a constitutional revision may only be accomplished by a constitutional convention and popular ratification, or by legislative submission to the electorate. The civil action by city and county governments mirrors private legal actions by the National Center for Lesbian Rights, Los Angeles attorney Gloria Allred and others on behalf of same-sex couples. Herrera has pledged to lead an aggressive effort to enlist additional support in the civil litigation from other California cities and counties.

Herrera represented San Francisco as a lead plaintiff in the original constitutional challenge filed in 2004, which resulted in the landmark state Supreme Court decision earlier this year recognizing marriage as a fundamental right guaranteed to all Californians, “whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” More than simply toppling a marriage exclusion that discriminated against millions of gay men and lesbians, the high court’s May 15, 2008 ruling established gays and lesbians as a suspect class under the California Constitution’s equal protection clause, including it among protected classes subject to a standard of strict scrutiny for judicial review.

The City and County of San Francisco was the first government entity in American history ever to sue for marriage equality, asserting in its March 2004 constitutional challenge a broad societal interest to strike down the marriage exclusion in California statutes. By the time the marriage cases were finally decided by the state high court more than four years later, fully twenty-one California cities and counties had joined San Francisco in support of marriage equality for same-sex partners. In total, some 7 of the state’s 8 largest cities united for the successful effort: Los Angeles, San Diego, San Jose, San Francisco, Long Beach, Sacramento and Oakland. Until today, the County of Los Angeles had not taken an official position on the matter of marriage equality.