The Human Rights Campaign held its National Dinner at the Walter E. Washington Convention Center on Oct. 5. Awardees included Jennifer Lopez and the plaintiffs and legal teams of the recent marriage-related Supreme Court cases. Sara Bareilles performed three songs, including ‘Brave.’Â (Washington Blade photos by Michael Key) Â
Barack Obama explains why his administration is jumping in on a Supreme Court case that could potentially change America.
Matt Baume’s Marriage New Watch dives deep into the briefs filed in the Supreme Court case against California’s Prop 8 Constitutional amendment barring that state from extending marriage rights to same-sex couples.
Dennis Herrera, San Franciscoâ€™s City Attorney since 2002, will be in the Supreme Court chambers in Washington next Tuesday observing the oral arguments over whether Proposition 8, Californiaâ€™s 2008 ballot measure banning gay marriage, should be upheld or overturned.
Although Herrera wonâ€™t be delivering the arguments against Proposition 8 on Tuesday, gay rights advocates in California say he has played a pivotal role since 2004 in pushing for marriage equality in that state.
Among other things, he has worked side-by-side with high profile attorneys Ted Olson and David Boies as a party to the case Hollingsworth v. Perry, which seeks to overturn Prop 8.
Jack Song, deputy press secretary for the San Francisco City Attorneyâ€™s Office, said Herrera and his legal team have been involved in â€śevery case, every court, through every procedural twist since February 2004â€ť in efforts to legalize same-sex marriage in California.
It was in 2004, Song noted, that Herrera provided legal support for then-San Francisco Mayor Gavin Newsomâ€™s highly controversial decision to issue marriage licenses to gay and lesbian couples and perform same-sex marriages at city hall.
California courts initially ruled that San Francisco lacked legal authority to perform same-sex marriages and quickly invalidated those marriages. But the action by Newsom and Herrera, which was denounced by same-sex marriage opponents, has been credited with triggering litigation by marriage equality advocates â€“ including Herreraâ€™s office — that led to the May 15, 2008 ruling by the California Supreme Court legalizing same-sex marriage in the state.
In response to a campaign led by same-sex marriage opponents, California voters overturned same-sex marriage rights in the November 2008 referendum known as Prop 8 by a margin of 52 percent to 48 percent.
In an interview with the Washington Blade on Tuesday, Herrera discussed his work on the Prop 8 case â€“ in the words of his deputy press secretary Song â€“ as a â€śstraight, devout Catholic, married manâ€ť who has championed the cause of marriage equality.
Washington Blade: What are your thoughts on the chances that Prop 8 will be overturned by the U.S. Supreme Court?
Dennis Herrera: Weâ€™re very, very optimistic. You just need to look at what has been the course of this litigation. If we go back nine years ago, all the state court proceedings and more recently in the federal court system, I canâ€™t tell you how gratified we were both at the District Courtâ€™s ruling and the Ninth Circuit [U.S. Court of Appeals] ruling clearly showing that thereâ€™s absolutely no constitutional justification whatsoever to discriminate when it comes to the issue of marriage equality.
And that for the community to be denied equal protection under the law when it comes to the issue of marriage strains all credulity. So weâ€™ve been gratified by the District Courtâ€™s ruling. If you look at Judge [Vaughn] Walkerâ€™s decision â€“ a well-reasoned, well thought-out opinion after sitting through a weeks-long trial, hearing from a variety of witnesses and hearing the Prop 8 proponents come up with virtually no argument, no evidence to support their position and then to have that decision affirmed by the Ninth Circuit â€“ weâ€™re very, very optimistic as weâ€™re heading into next weekâ€™s argument.
Blade: What role has your office played in the U.S. Supreme Court case on Prop 8?
Herrera: We intervened and stood shoulder to shoulder with the Gibson Dunn firm â€” the David Boise firm â€” both at trial and at the Ninth Circuit and here as weâ€™re leading up to the Supreme Court argument. So we have been involved in every piece of state litigation on this as well as the federal action. In fact, we were the only party allowed to intervene in the case and participate on our side as a party. We have been working alongside the lead counsel in the case and continue to do so leading up to the [U.S. Supreme Court] arguments.
Blade: Could you explain as best you can in laymanâ€™s terms what we understand to be the possible outcomes by the Supreme Court? In one outcome they can uphold Proposition 8. But is the court also being asked to rule that under the U.S. Constitution, no state can ban same-sex couples from marrying?
Herrera: I think that what you see if you look at the briefs of the plaintiffs and ours â€“ weâ€™re very, very complimentary. Clearly the plaintiffs in the case, as represented by Ted Olsen and David Boies, are seeking the broadest possible remedy to strike down discrimination vis-a-vis marriage equality nationwide.
And if you look at our briefs, what we do is try and make sure that we offer the full panoply in a very complimentary way. We fully agree with Ted Olsen and Boies and support their contention that heightened scrutiny should apply in this case, which would essentially, if found in the plaintiffâ€™s favor, would basically have nationwide impact. But in addition, we have argued in our brief, while we fully agree with them, that even if you limited it to California and states similarly situated to California â€” the prohibition on marriage should not apply. So itâ€™s a more limited but complimentary approach. Just so the court has the full panoply of possible avenues before it. But weâ€™re in full support of the broad argument, but if the court wants to rule in our favor but limit it to California and other states that are similar to California, we briefed that issue as well.
Blade: How would it affect other states that are similar to California?
Herrera: If you look at the [U.S.] Solicitor Generalâ€™s brief, the governmentâ€™s brief, they have essentially said that states like California that have extended domestic partner benefits that allow same-sex couples to adopt, those that have been out there granting rights to same-sex couples cannot take them away through tools like Proposition 8. So thereâ€™s about seven or eight states that are similarly situated to California. And they have come in and said for those states, not just California but for those others, you canâ€™t take an approach like folks have done with Proposition 8.
Blade: Does that include states outside Ninth Circuit?
Blade: Some constitutional experts that study the Supreme Court, including some who support same-sex marriage, have argued that it would be better for the court to limit an affirmative decision to just California rather than issue a ruling that would require all states to recognize same-sex marriage. They say that a ruling forcing all states to legalize same-sex marriage would create too great a shock to the culture, especially in southern and certain mid-Western states. What are your thoughts on that?
Herrera: I have heard that. But, like I said, in this case weâ€™re working along with the lead counsel and have really offered a variety of different directions the court should go. And I would like to say this. I know that people make that argument. But think about how things have changed.
Letâ€™s just go back. Proposition 22 that passed here in California in 2000 was against marriage equality 60 to 40. And with Proposition 8 we saw what the numbers were [52 percent for Prop 8, 48 percent against]. Recently, on the same day that the federal government â€“ the administration â€“ came in support of our position there was a Field Poll released here in the State of California that showed that 61 percent of people now in California favor same-sex marriage as opposed to 32 percent. â€¦
So Iâ€™m fully in support of a broader approach and I think that would be the best thing for the country. But if in its judgment the Supreme Court does not want to go that route we have offered them and the United States government has offered them another direction to go that perhaps might be more limited but ultimately we know is going to lead to the same result nationwide.
Blade: In 2004, when San Francisco Mayor Gavin Newsom allowed marriages to take place at City Hall, you supported that, right?
Blade: But some lawmakers in Washington at the time, including Congressman Barney Frank, thought that might be jumping the gun a little bit and that it could lead to a greater push for a constitutional amendment to ban same-sex marriage. That never passed, but some were worried that it could. Was that something that entered your mind back then?
Herrera: I think history has borne out that we in San Francisco were on the right side of history when you look at the tremendous progress that has been made over the course of the last several years. So I think that sometimes it is somewhat scary for people to take the unconventional approach and to push the envelope. But I think that the wisdom of that approach has been borne out by history.
A freshman openly gay member of Congress from California is calling on President Obama to participate in litigation challenging Proposition 8 before the Supreme Court as the administration has done in the DOMA case.
In a letter dated Feb. 26, Rep. Mark Takano (D-Calif.) asks President Obama to instruct his Justice Department to argue Prop 8 is unconstitutional on the basis it should be subjected to heightened scrutiny â€” or a greater assumption it’s unconstitutional â€” just as it did in a brief filed last week in the case against the Defense of Marriage Act.
“I strongly and respectfully ask that the United States provide an amicus brief to the Supreme Court inÂ PerryÂ to explain how heightened scrutiny, the standard that the United States urges be applied to the so-called Defense of Marriage Act, applies to Proposition 8,” Takano writes. “A brief by the United States will assist the Supreme Court to see that Proposition 8 fails heightened scrutiny and does not further any proper governmental objectives.”
Takano explains in his letter that Prop 8, a ballot initiative that was approved by California voters in 2008, affects couples in his state and district who are unable to marry because of the amendment.
“My district includes thousands of loving gay and lesbian couples, who are not able to marry due to Proposition 8,” Takano writes. “They are our families, our friends and neighbors. They are doctors, veterans, teachers, gardeners, firefighters and police officers. They are Americans. Every day that they cannot enjoy the same rights and obligations enjoyed by other Americans, they and their families suffer.”
The White House has repeatedly declined comment on whether it’ll participate in the Prop 8 lawsuit before the Supreme Court, although President Obama has said Solicitor Donald Verrilli is “looking” at filing a brief. In response to the Takano letter, a White House spokesperson deferred comment to the Justice Department, which didn’t immediately respond to a request to comment.
Other LGBT advocates have been calling on President Obama to participate in the Prop 8 case, known as Hollingsworth v. Perry, by filing a friend-of-the-court brief.Â The deadline for them to file a friend-of-the-court brief is Thursday.
Herndon Graddick, president of the Gay & Lesbian Alliance Against Defamation, or GLAAD, announced on Monday that his organization shares the desire for Obama to participate in the Prop 8 case.
“President Obama has already weighed in on DOMA, but as he himself said in his inaugural address: ‘Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well,’” Graddick said. “With less than four days left to act, it is time for the administration to make its views known directly to the U.S. Supreme Court by filing a friend of the court brief in theÂ PropositionÂ 8Â case as well.”
Takano’s letter comes on the same day as The New York Times reported that more than 75 prominent Republicans have signed their own friend-of-court brief asking the Supreme Court to strike down Proposition 8.
Among the signers of that brief is Ken Mehlman, the gay former chair of the Republican National Committee, who is credited with organizing the brief. Another signature is from Hewlett-Packard CEO and former California gubernatorial candidate Meg Whitman, who campaigned in support of Prop 8.
Two Republican members of Congress who have sponsored legislation to repeal the Defense of Marriage Act â€” Reps. Ileana Ros-Lehtinen (R-Fla.) and Richard Hanna (R-N.Y.) â€” are also among the signers. They are the only two Republicans currently holding federal office who signed the brief.
Other signers are former Utah governor and 2012 Republican presidential candidate Jon Huntsman, who publicly came out in favor of marriage equality last week, as well as GOP strategist Steve Schmidt, who helped with John McCain’s 2008 presidential campaign and came out in support of marriage equality in a 2009 interview with the Washington Blade.
Evan Wolfson, president of Freedom to Marry, said the brief as reported by the New York Times reflects the growing support for marriage equality â€” even within the Republican Party.
“A who’s who of the Republican Party has come before the Supreme Court to affirm that support for the freedom to marry is a mainstream position that reflects American values of freedom, family, and fairness, as well as conservative values of limited government and personal responsibility,” Wolfson said. “As opposition to the freedom to marry becomes increasingly isolated and the exclusion from marriage increasingly indefensible, Americans all across the political spectrum are saying it’s time to end marriage discrimination, do right by families, and get our country on the right side of history.”
The Supreme Court set the stage this year for what might be the demise of California’s Proposition 8 and the Defense of Marriage Act when it agreed to take up litigation challenging the anti-gay measures.
On Dec. 7, justices agreed to take up Hollingsworth v. Perry, the lawsuit seeking to overturn Prop 8, and Windsor v. United States, a lawsuit filed by 83-year-old New York lesbian Edith Windsor seeking to overturn DOMA.
Ted Olson, one of the co-counsels representing plaintiffs, expressed optimism following the announcement that justices would rule against the California’s constitutional ban on same-sex marriage, which was approved by voters in 2008.
â€śWe have an exhaustive record on which to build this case, and it will be an education for the American people,â€ť Olson said. â€śWe are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.â€ť
The case comes to the Supreme Court after the U.S. Ninth Circuit Court of Appeals in February ruled against Prop 8. Had the Supreme Court declined to accept the case, the ruling would have stood and marriage equality would have been restored to California.
The DOMA case comes to the Supreme Court after numerous lower courts determined the anti-gay law was unconstitutional. The U.S. First Circuit Court of Appeals became the first appellate court ever to strike down the law and was followed by the U.S. Second Circuit Court of Appeals. This year alone, four federal district courts also ruled against DOMA.