San Francisco’s Legal Fight for Marriage Equality

On the one year anniversary of same sex marriage being reinstated in California, San Francisco City Attorney Dennis Herrera reflects on the legal battle for marriage equality that his office was at the forefront of for nearly a decade.

He filed the first government-initiated challenge to marriage laws that discriminate against same-sex couples in American history, and his office holds the unique distinction of being the only legal team involved as a party in every aspect of the legal fight in California — in every case, in every court, before every judge — from early 2004 to the U.S. Supreme Court’s landmark rulings in June 2013. From defending Mayor Gavin Newsom’s decision to issue same-sex marriage licenses in February 2004, Herrera’s office went on to successfully sue to strike down the anti-gay marriage exclusion in state courts, and continued to represent the public sector interest in striking down Proposition 8 in the successful federal challenge alongside the American Foundation for Equal Rights.

San Francisco’s Marriage Equality Timeline

The following is a timeline of actions the San Francisco City Attorney’s Office has undertaken for the cause of marriage equality in California and the U.S. since 2004. 2004

Feb. 12, 2004. Mayor Gavin Newsom begins issuing marriage licenses to same sex couples. City Hall remains open and issues licenses throughout Valentine’s day weekend.
Feb. 13, 2004. Anti-gay activists (Randy Thomasson/Campaign for California Families and Proposition 22 Legal Defense and Education Fund) file suits in San Francisco Superior Court seeking to enjoin Mayor and County Clerk from continuing to issue marriage licenses to same-sex couples.
Feb. 17, 2004. City Attorney Dennis Herrera and Chief Deputy City Attorney Terry Stewart appear in San Francisco Superior Court in the Prop 22 and Thomasson cases and successfully defend against immediate restraining order that would bar the City and its officials from marrying same-sex couples. The court sided with Herrera’s argument that the petitioners failed to show irreparable harm to anyone from allowing same-sex couples to marry. Superior Court Judge James Warren sets hearing for March 29, 2004 on whether to enjoin City’s acts, allowing marriages to continue until then. The City Attorney’s defense enables San Francisco to continue issuing marriage licenses for a full month, during which time 4,000 same-sex couples are married in San Francisco.
Feb. 19, 2004. Announcing that “the City and County of San Francisco is going on the offensive today,” City Attorney Herrera files a cross-complaint in the same-sex marriage litigation to sue the State of California to invalidate marriage laws that discriminate against gay and lesbian couples. It is the first government challenge to anti-gay marriage laws in U.S. history.
Feb. 25, 2004. Anti-gay activists Lewis et al. file original proceeding in California Supreme Court challenging City’s issuance of marriage licenses to same-sex couples and seeking immediate relief. City Attorney Herrera calls new bid for high-court stay of same-sex marriages licenses “Unconvincing,” arguing that the Supreme Court is not the proper venue for the City to present evidence that discriminatory marriage laws are unconstitutional and unjustifiable. https://www.sfcityattorney.org/2004/02/25/herrera-calls-new-bid-for-high-court-stay-of-same-sex-marriages-licenses-unconvincing/
Feb. 27, 2004. Attorney General Bill Lockyer files original proceeding in California Supreme Court challenging City’s issuance of marriage licenses to same-sex couples and seeking immediate relief. Court orders City and officials to respond by March 5, 2004.
March 5, 2004. City Attorney Herrera files briefs in California Supreme Court responding to original proceedings in Lewis and Lockyer.
March 11, 2004. California Supreme Court issues order requiring City and its officials to cease and desist from issuing marriage licenses to same-sex couples. The order indicates that the Court will address the authority of city officials to issue the marriage licenses, but that the question of constitutionality of marriage laws may be raised in a separate proceeding in Superior Court. Within hours, City Attorney Herrera files an original complaint against the State of California in San Francisco Superior Court challenging state law definition of marriage as violating California Constitution’s equal protection, privacy and liberty provisions. https://www.sfcityattorney.org/2004/03/11/herrera-sues-state-in-original-action-forcing-constitutional-questions-on-marriage-between-same-sex-couples/
March 12, 2004. Couples represented by National Center for Lesbian Rights, Lambda Legal Defense and Education Fund and ACLU of Northern California file a parallel action to the San Francisco City Attorney’s case challenging California marriage laws under State Constitution. This case and other cases raising similar issues are subsequently coordinated with San Francisco’s case and litigated together under title “In re Marriage Cases.”
May 25, 2004. City Attorney Herrera and Chief Deputy Stewart appear in California Supreme Court and argue that city officials had authority to issue marriage licenses to same-sex couples and that Court should not invalidate licenses issued by the City in February and March 2004.
Aug. 12, 2004. California Supreme Court issues ruling holding Mayor and other city officials lacked authority to issue marriage licenses to same-sex couples, invalidating marriage licenses issued by San Francisco to same-sex couples in February and March 2004.
Dec. 22 and 23, 2004. Herrera’s office presents argument to Judge Richard Kramer in San Francisco Superior Court in case challenging California marriage statutes as violating California Constitution. NCLR attorney presents arguments on behalf of same-sex couples.

2005

Mar. 15, 2005. Legal victory for marriage equality. San Francisco Superior Court Judge Kramer holds that California’s marriage laws violate the State Constitution’s equal protection clause by discriminating based on gender. https://www.sfcityattorney.org/2005/03/14/herrera-lauds-trial-court-decision-finding-discriminatory-marriage-laws-unconstitutional/
Nov. 9, 2005. City Attorney Herrera files with the California Court of Appeal the City respondent’s brief in its constitutional challenge to the provisions of the California Family Code that discriminate against gay and lesbian couples in marriage rights. Together with non-profit and private attorneys for more than a dozen same-sex couples, the City is seeking to defend the March 14th ruling by San Francisco Superior Court Judge Kramer that struck down as unconstitutional legal provisions excluding same-sex couples from civil marriage.
Dec. 16, 2005. City Attorney’s Office files response to marriage rights foes in Court of Appeals.

2006

Oct. 10, 2006. Legal setback for marriage equality in California, as the California Court of Appeal panel issues split decision in In re Marriage Cases upholding the constitutionality of marriage laws that discriminate against gay and lesbian couples. Court of Appeal Justice Anthony Kline issues vigorous dissent, arguing marriage laws violate California Constitution’s right to privacy.
Dec. 20, 2006. The California Supreme Court agrees to review Court of Appeal ruling in In re Marriage Cases.

2007

April-Nov. 2007. Over the course of the year. City Attorney Herrera files San Francisco’s opening, reply, supplemental and reply to amicus briefs with Supreme Court in In re Marriage Cases.

2008

Mar. 4, 2008. California Supreme Court hears oral arguments about same-sex marriage.
May 15, 2008. Legal victory for marriage equality in California. California Supreme Court holds that California marriage laws’ exclusion of same-sex couples violates State Constitutional rights to privacy, liberty and equal protection. Decision by State’s High Court ‘has affirmed our Constitution’s promise of equality for millions of Californians and their families.’ https://www.sfcityattorney.org/2008/05/15/herrera-hails-california-supreme-court-ruling-invalidating-discriminatory-marriage-laws/
May 22, 2008. Prop 22’s marriage equality foes files petition to delay California Supreme Court’s decision.
May 28, 2008. Herrera files opposition to Prop 22 group’s petition to stay marriage equality ruling. Delaying constitutional right to marry by same-sex couples is ‘inappropriate,’ ‘inhumane,’ Herrera argued.
May 30, 2008. Herrera announced that he will file his opposition next week to a request by Attorneys General from ten states asking the California Supreme Court to postpone the effective date of its landmark decision recognizing marriage equality for lesbians and gay couples until after the November 2008 election, when a proposed amendment may go before state voters to write marriage discrimination into California’s Constitution.
Jun. 3, 2008. Proposition 8, a constitutional amendment to ban same-sex marriages, qualifies for the November 2008 ballot.
Jun. 4, 2008. California Supreme Court denies the stay petition for stay in marriage equality case.
June 16 and 17, 2008. California Supreme Court’s decision in In re Marriage Cases becomes final and weddings of same-sex couples begin again at San Francisco City Hall and at counties across the State of California. Officiating marriage of Lia Shigemuria and Helen Zia on June 17, 2008
June 17 through Nov. 4, 2008. Weddings of same-sex couples continue through Nov. 4, 2008 as Proposition 8 proponents wage a controversial anti- campaign to convince voters to amend California Constitution to prevent same-sex couples from continuing to marry in California.
Nov. 4, 2008. Setback for marriage equality in California. Proposition 8 passes with 52% of the vote
Nov. 5, 2008. Herrera is joined by the joined by the City of Los Angeles and Santa Clara County in an original proceeding in California Supreme Court challenging Proposition 8 as a constitutional revision requiring a vote of the legislature before being placed on the ballot. Couples, represented by NCLR, Lambda and the ACLU San Francisco, file parallel proceeding in California Supreme Court to invalidate Prop 8. https://www.sfcityattorney.org/2008/11/05/herrera-joined-by-los-angeles-santa-clara-counterparts-in-suing-to-invalidate-prop-8/
Nov. 19, 2008. California Supreme Court agrees to hear legal challenges to Proposition 8. Debate shifts from same-sex marriage to core constitutional principles of separation of powers, equal protection.
Dec. 10, 2008. More local governments join the City and County of San Francisco, the City of Los Angeles and the County of Santa Clara filed their legal challenge, including the counties of Alameda, Los Angeles, Marin, San Mateo and Santa Cruz and the cities of Fremont, Laguna Beach, Oakland, San Diego, Santa Cruz, Santa Monica and Sebastopol. Public sector legal challenges joining San Francisco in opposition to Prop 8’s validity will eventually comprise local governments representing more than 17.2 million Californians.
Nov. 2008 through Jan. 5, 2009. Herrera files briefs on behalf of local governments and married couples, defending principles of judicial independence, arguing against retroactivity, and sharply disputing Prop 8 campaign’s push for ‘Blank Check to Discriminate.’

2009

March 5, 2009. Herrera’s office argues in the California Supreme Court on behalf of San Francisco and other local governments and same-sex couples that Proposition 8 should be struck down as a revision of the California Constitution that failed to follow the processes required for such a change.
May 26, 2009. Setback for marriage equality in California. California Supreme Court issues decision upholding Proposition 8 as a valid amendment to the California Constitution. Protests follow across the state and nation.
May 27, 2009. American Foundation for Equal Rights announces filing on May 22, 2009 of marriage equality case challenging Prop 8 in Federal Court in San Francisco, titled “Perry v. Schwarzenegger,” and file motion for preliminary injunction to enjoin enforcement of Prop 8.
May 28, 2009. Prop 8 proponents file motion to intervene on side of State of California to defend Prop 8 in Perry v. Schwarzenegger.
June 18, 2009. Herrera files amicus brief in support of federal challenge to Proposition 8. The City Attorney argues that California’s Prop 8 was based on moral disapproval of gays and lesbians, similar to Colorado’s Amendment 2, which the U.S. Supreme Court struck down in 1996. https://www.sfcityattorney.org/2009/06/18/herrera-files-amicus-brief-in-support-of-federal-challenge-to-proposition-8/
June 30, 2009. U.S. District Judge Vaughn Walker issues Case Management Order indicating that parties’ briefs in support of and opposition to motion for summary judgment in Perry v. Schwarzenegger demonstrate disputes of fact and suggests a court trial should be held to resolve them. Judge grants unopposed motion by Prop 8 Proponents to intervene in case to defend Prop 8.
July 23, 2009. City Attorney Herrera files San Francisco’s motion to intervene on side of Plaintiffs in Perry v. Schwarzenegger. Herrera says his office is ‘singularly well-prepared’ to help ‘put anti-gay discrimination on trial based on the facts’
Aug. 19, 2009. Judge Walker holds argument and announces decision allowing City and County of San Francisco to intervene on behalf of Plaintiffs in Perry v. Schwarzenegger. Sets trial date of January 11, 2009. https://www.sfcityattorney.org/2009/08/19/san-francisco-allowed-to-intervene-in-federal-challenge-to-proposition-8/
Aug. 2009 – Jan. 2010. City Attorney’s Office works with plaintiffs’ counsel, Ted Olson and David Boies, to identify and prepare reports of expert witnesses, obtain and provide discovery including depositions of Prop 8 Proponents and experts they designate, develop evidence and strategy for trial.

2010

Jan. 11, 2010 – Jan. 27, 2010. City Attorney Herrera and deputies participate in all aspects of the federal trial, along with plaintiffs represented by the Boies Schiller and Gibson Dunn law firms. City Attorney and deputies present testimony of expert witnesses historian George Chauncey and City Economist Edmund Egan, and percipient witnesses San Diego Mayor Jerry Sanders, Helen Zia and Ryan Kendall.
Jan. 20, 2010. City Attorney Herrera conducts direct examination of San Diego Mayor Sanders in the federal trial on Proposition 8. The Republican mayor and former police chief had not previously supported same-sex marriage, but announced his change of heart at an emotional 2007 news conference, in which he vowed to sign a San Diego City Council resolution backing San Francisco’s state constitutional challenge to discriminatory marriage statutes. Sanders testifies that his previous position backing civil unions but not marriage for same-sex couples, though not based on animus, was based on prejudice.
Jan. 24, 2010. “8 the Mormon Proposition,” narrated by Oscar-winning screenwriter Dustin Lance Black, premieres at the Sundance International Film Festival. City Attorney Herrera, one of the leaders featured in the documentary, discusses Prop 8 at the screening.
June 16, 2010. Closing arguments in Prop 8 federal case. Chief Deputy City Attorney Therese M. Stewart argues for the City & County of San Francisco.
Aug. 8, 2010. Legal victory for marriage equality. U.S. District Court holds that Prop 8 violates U.S. Constitution’s 14th Amendment. Judge Walker holds that the amendment lacks a rational basis and serves no legitimate state interest. The Court relies in part on evidence and arguments presented at the trial by San Francisco attorneys, entering judgment to enforce Prop 8 but to temporarily stay that judgment pending proponents’ intended appeal.
Aug. 16, 2010. Over plaintiffs’ and San Francisco’s opposition, the U.S. Court of Appeals for the Ninth Circuit grants proponents’ motion for an emergency stay of the District Court’s judgment pending the appeal. The Court orders an expedited briefing schedule.
Oct. 10, 2010. City Attorney Herrera files the City’s brief with the Ninth Circuit Court of Appeals in the pending appeal of the U.S. District Court’s ruling striking down Proposition 8 under the federal Constitution. The City argues that Proposition 8 is “peculiarly irrational” under California law because it “removed only the honored stature of ‘marriage’ from same-sex couples, yet altered none of their state constitutional rights to the traditional incidents of marriage, including the right to form a family and raise children.”
Dec. 6, 2010. A panel of the Ninth Circuit U.S. Court of Appeals, comprised of Circuit Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith, hears argument on proponents’ appeal of the District Court’s judgment. Chief Deputy City Attorney Therese M. Stewart argues on behalf of the City.

2011

Jan. 4. 2011. The Ninth Circuit issues an order determining that Proponents’ standing on appeal depends on unresolved questions of California law and certifying a question about California law to the California Supreme Court. The stay remains in effect.
Feb. – March 2011. City Attorney Herrera joins plaintiffs’ motion to lift the stay of the District Court’s judgment while the certified question to the California Supreme Court is pending. The Ninth Circuit denies the motion and keeps the stay in place.
April 4, 2011. City Attorney Herrera files the City’s brief with the California Supreme Court arguing that proponents do not exercise the authority of the State in bringing their federal appeal of the District Court’s judgment, that only the Governor and the Attorney General can take an appeal on behalf of the State, and that proponents are not injured personally by the District Court’s judgment granting same-sex couples equal marriage rights.
April 2011. The Prop 8 proponents seek to recover all copies of the trial video, which are maintained under seal by all parties. Plaintiffs and the City oppose their motion and cross-move to unseal the video.
April 25, 2011. Prop 8’s proponents move to vacate the District Court’s decision on the grounds that former Chief Judge Walker should have either recused himself because he is gay and in a same-sex relationship, or because he failed to disavow any interest in marrying his same-sex partner.
May 12, 2011. City Attorney Herrera opposes proponents’ efforts to disqualify former Chief Judge Walker, arguing that the motion is based on the same outdated notion that members of minority groups cannot fairly hear cases involving minority rights–and argument courts have rejected time and again.
June 2011. Chief Deputy City Attorney Terry Stewart, an out lesbian and one of the main legal architects of City’s legal battle for marriage equality, is named as one of the Individual Community Grand Marshals by San Francisco Pride.
June 13, 2011. District Court hears arguments concerning proponents’ motion to disqualify Judge Walker. Chief Deputy City Attorney Stewart argues on behalf of the City.
June 14, 2011. District Court denies proponents’ motion to disqualify former Chief Judge Walker.
Aug. 29, 2011. District court hears arguments on plaintiffs’ and City’s motion to lift the seal on the trial recordings. Deputy City Attorney Christine Van Aken argues on behalf of the City.
Sept. 6, 2011. California Supreme Court hears argument on the Ninth Circuit’s certified question concerning proponents’ status under state law. Former U.S. Solicitor General Ted Olson argues on behalf of plaintiffs and the City.
Sept. 19, 2011. District Court grants plaintiffs’ and City’s motions to unseal the video recordings, finding that the public has a common law right to access records of the trial.
Photo courtesy of Ashley Thompson.

Nov. 4, 2011. In separate case ProtectMarriage.com v. Bowen, brought against the State of California and the City and County of San Francisco, and defended by City Attorney Dennis Herrera, District Court determines that supporters of Proposition 8 must comply with state campaign finance laws. Backers of Proposition 8, the constitutional amendment that denied same-sex couples the right to marry, had sought to hide the identities of their contributors, arguing that those contributors would be harassed if their names were disclosed. The District Court finds the allegations baseless.
Nov. 14, 2011. City Attorney Herrera files a brief in the Ninth Circuit arguing that the Court should lift the seal on the video recordings of the Prop 8 trial. Herrera argues that Prop 8 proponents have made no showing that they might be subject to threats or harassment if the video recordings were released, and that the public has a right to access trial records, particularly concerning such an important issue.
Nov. 17, 2011. California Supreme Court issues opinion on the certified question, determining that proponents have authority under California law to take an appeal on behalf of the State regarding the validity of an initiative they have proposed where state officials do not appeal.
Dec. 2, 2011. City Attorney Herrera files a supplemental brief in the Ninth Circuit, arguing that because proponents have been held by the California Supreme Court to be exercising the authority of the State to appeal, they must not be permitted to deny that California’s laws and policies treat same-sex couples as fully equal to opposite-sex couples in all aspects of family and childrearing — indicating that the denial of the honored title of “marriage” to same-sex couples is peculiarly irrational and intended only to dishonor same-sex couples, not to serve California’s interests in family and childrearing policies.
Dec. 8, 2011. The same panel of the Ninth Circuit that heard argument on the merits of Prop 8 hears arguments about whether the trial videos should be unsealed and whether former Chief Judge Walker should be disqualified. Chief Deputy City Attorney Therese M. Stewart presents both arguments on behalf of the City.

2012

Feb. 6, 2012. The Ninth Circuit reverses the District Court’s order unsealing the videotapes, holding that Proponents relied on former Chief Judge Walker’s statements that the videos would remain under seal. City Attorney Herrera expresses disappointment with the ruling.
Feb. 7, 2012. Legal victory for marriage equality. Ninth Circuit panel affirms that Prop 8 violates the U.S. Constitution. Citing key arguments made in Herrera’s briefing about California’s strong legal guarantees for same-sex couples, the majority opinion upholds the district court ruling. The Ninth Circuit panel also rejects Proponents’ arguments that Chief Judge Walker could not fairly preside over the Prop 8 trial because he is gay and in a same-sex relationship.
Feb. 21, 2012. Prop 8 proponents file a petition to the Ninth Circuit seeking reconsideration of the panel’s decision by an en banc panel of the Ninth Circuit.
Mar. 1, 2012. Herrera files City’s brief opposing Ninth Circuit re-hearing on Proposition 8; City Attorney calls same-sex marriage ban ‘peculiarly irrational and inexplicable by anything other than prejudice.’
June 5, 2012. Ninth Circuit denies petition for rehearing or rehearing en banc
July 30, 2012. Prop 8 proponents file petition for certiorari with U.S. Supreme Court.
Aug. 24, 2012. Herrera files City’s brief in opposition to certiorari with U.S. Supreme Court; plaintiffs also oppose certiorari.
Dec. 7, 2012. As U.S. Supreme Court grants review in the federal challenge to Proposition 8, Herrera expresses confidence that high court will reach “a decision that reaffirms our Constitution’s promise of equal protection under the law.”

2013

Jan. 7, 2013. U.S. Supreme Court sets Prop 8 oral argument date for March 26. The legal challenge to DOMA is scheduled for the following day, setting the stage for back-to-back showdowns over LGBT civil rights.
Mar. 26, 2013. Oral arguments before the U.S. Supreme Court. Ted Olson argues for those challenging Prop 8, in questions ranging from jurisdictional issues to the measure’s constitutionality.
June 26, 2013. U.S. Supreme Court’s majority opinion in Hollingsworth v. Perry (No. 12-144) holds that proponents of California’s Proposition 8 lacked standing to appeal a lower court ruling invalidating the measure as unconstitutional, restoring marriage equality for same-sex couples throughout California.