SF City Attorney Seeks to Join Federal Prop 8 Suit

San Francisco City Attorney Dennis Herrera, who earlier filed an amicus brief in support of the federal Perry v. Schwarzenegger lawsuit challenging Proposition 8, today filed a Motion to Intervene (pdf, after news release) in the case, following up on a similar action taken earlier this month by the major LGBT legal groups on behalf of some LGBT organizations in California.  Per the Court’s previous order, all motions to intervene must be submitted by Friday.

Herrera said in a news release, “San Francisco is a singularly well-prepared co-plaintiff in this case, both in terms of the wealth of evidence it has already developed, and its unique public sector perspective in having to enforce a discriminatory law.”

The Motion itself is quite interesting, raising some factual issues of which many folks, myself included, might be unaware, including that “[i]n 1982, the Board of Supervisors passed a domestic partner ordinance, but [then-]Mayor Feinstein vetoed it.”  City of San Francisco Motion to Intervene (City Motion), at 3. I can’t imagine that’s a veto that Senator Feinstein enjoys seeing reprinted today.

The City goes on to describe its long history of addressing LGBT discrimination and, in so doing, makes a fairly compelling argument for why its intervention in the case is advisable:

In the Marriage Cases, the City invested considerable time and effort in developing a record on most of the very same matters this Court suggested in its June 30, 2009 Order (”Order”) should be the subject of evidence in this action.  The City researched the issues, consulted with and interviewed dozens of potential experts, retained  twelve experts (including two City officials), and worked with those experts to develop declarations on the issues pertinent to the case.  See Stewart Decl. ¶ 8.  It also proffered seven lay witness declarations touching on some of these points.  Id.

City Motion, at 6.  The City goes on to describe, with citation to evidence presented in the Marriage Cases, how the City could assist Judge Walker in accumulating the record he has requested in this case.  Notably, the City also not-so-subtly, and repeatedly, points out that the City alone had been seeking to develop a strong factual record in the earlier Marriage Cases and that the same set of LGBT legal groups — the ACLU, Lambda and NCLR — had “agreed, over the City’s objection, that the Court could decide the issues presented as a matter of law without considering the evidence submitted.”  City Motion, at 8.

Finally, in an argument that turns the “public fisc” argument raised by opponents of marriage equality on its head, the City argues:

The City has not only a financial interest in licensing and performing marriages of same-sex couples and in the tax revenues that flow from weddings held in the City, but also has an interest in preventing social, mental health, and other harms suffered by its LGBT citizens.  Spouses and children in families who are not provided the full governmental and social support that marriage brings are more likely to become reliant on the government social safety net when a relationship breaks down, and local governments are the primary providers of the public health and welfare safety net.  See Stewart Decl., Exh. 13.

City Motion, at 12.  Herrera, on behalf of the City of San Francisco argues that continued marriage discrimination — and not extending marriage equality — is the financial burden on the City.  How about them apples?

In light of the most recent words from the American Foundation for Equal Rights, which has brought the Perry suit, I’m interested to see their thoughts on the latest proposed intervening party.  Perhaps seeking to address those potential concerns, the City notes that it: “has endeavored to build a strong and positive relationship with the Plaintiffs’ counsel in this case from the outset, responding swiftly and affirmatively to requests for information and amicus support.”  City Motion, at 13.

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