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SF Ready to Litigate Prop 8 If Need Be

by Matthew S. Bajko
Friday Jun 7, 2013

The easiest solution would be for the U.S. Supreme Court to issue a sweeping decision making same-sex marriage legal throughout the country, similar to its 1967 ruling outlawing bans against interracial marriage.

But hardly anyone predicts that the nation's highest court will take such a bold step in either of its rulings in two marriage cases now before it. The justices are expected to announce their decisions sometime this month.

Most legal observers expect that the court will strike down Section 3 of the Defense of Marriage Act, thus allowing federal recognition of same-sex marriages sanctioned by the states, in its decision in the U.S. v. Windsor case. Such a ruling would not overturn the bans against same-sex marriage at the state level.

In the second case, Hollingsworth v. Perry , it is expected that the court's ruling will lead to the overturning of California's anti-gay constitutional amendment against same-sex marriage known as Proposition 8. But opinions differ on how the court will decide the matter, and its ruling could result in more litigation within the state courts.

"I think there is a significant possibility the court will make a ruling on standing grounds," Chief Deputy City Attorney Therese Stewart, who has litigated the case on behalf of San Francisco, said during a roundtable discussion about the lawsuits in April. "If it does not rule based on standing, I didn't get a warm and fuzzy feeling the justices will say the 50 states will now all have gay marriage."

There is differing legal opinion on just when same-sex marriages could resume again in California if Prop 8 is indeed struck down, and questions have been raised if a narrowly tailored decision from the Supreme Court would mean just the named plaintiffs in the case, a male and a female same-sex couple, could marry.

No matter what the outcome is, San Francisco City Attorney Dennis Herrera told the Bay Area Reporter this week that his office is prepared to again litigate Prop 8, if need be, in the state court system.

"Absolutely, we have been involved in this case for nine years in state court actions and in federal court actions. We are prepared to do whatever we can to assure we have marriage equality in California," said Herrera. "If that means we need to continue litigating this issue, we will do so with the full force of my office and are standing at the ready to continue the battle we are involved in."

It was Herrera's decision to file a lawsuit back in 2004 against California's anti-gay marriage statutes that first set off the legal fight to secure marriage equality in the Golden State. That litigation, known as In Re: Marriage Cases, was sparked by former San Francisco Mayor Gavin Newsom ordering city officials to marry same-sex couples in the winter of 2004.

After the state Supreme Court invalidated those marriages that had taken place, it invited Herrera to file a new case focused on the state statutes. Four years later the court ruled in favor of marriage equality, leading anti-gay groups to put Prop 8 on the ballot.

Shortly after Prop 8 passed in 2008, the American Foundation for Equal Rights filed the federal lawsuit against the law and Herrera's office was a party to the case. Both a federal district judge and the 9th U.S. Circuit Court of Appeals found Prop 8 to be unconstitutional, though their rulings differed in scope.

The Yes on 8 proponents appealed to the U.S. Supreme Court, which accepted the case but then questioned if the group had proper standing to bring the litigation before it. It held oral arguments in both of the marriage cases in late March.

Herrera would not speculate on how the court would rule in the Prop 8 case or say exactly when city officials could begin marrying same-sex couples again if the law is overturned.

"It is dangerous to speculate on what the court will do. For us, we plan to be prepared for any potentiality," he said. "In the event there is an avenue to let the marriages go forth immediately, we stand willing and able to facilitate that and work with the clerk's office to make that happen."

His office issued a press advisory Wednesday detailing the possible outcomes of the court's ruling. It specified that from the date of the ruling it would be one month before the same-sex marriages could resume.

The reason being that normally there is a period of 25 days before the court's final judgment is entered to allow for parties to petition for rehearing. The court, however, almost never grants such petitions.

There could also be lengthy delays, warned the memo, because of post-ruling litigation, citing as an example if Prop 8 proponents or other parties sue to dispute the statewide scope of the U.S. District Court's ruling. If the court finds Prop 8's backers had no standing to bring the case, then some have suggested only the two plaintiff couples or those living in Los Angeles and Alameda counties, which were named as defendants in the case, could marry.

In its brief to the court, Herrera's office disputed such arguments in a footnote that argued that the district court's judgment applies to all state officials charged with enforcing marriage laws and all those acting in concert with them or under their supervision. It based its reasoning on the very first same-sex marriage case, Lockyer v. City and County of San Francisco, it filed in 2004 to argue that the roughly 4,000 same-sex marriages that year should be upheld.

In invalidating those marriages, the state Supreme Court ruled that a mayor could not override state laws and that county clerks must abide by them.

"We have had a lot of ups and downs, highs and lows over the last nine years," said Herrera. "We anxiously look forward to the high court's ruling and are very confident in the positions we outlined and are hopeful, once and for all, we will have marriage equality here in the state of California."

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