California Cities and Same-Sex Couples Join SF's Prop. 8 Challenge

By Lauren Smiley

The San Francisco city attorney filed an amended petition (note: PDF file) challenging the constitutionality of Prop. 8 in the state Supreme Court Wednesday, adding seven same-sex married couples and 11 more cities and counties as parties. The amended filing also argues that Prop. 8 (if the high court would uphold it as constitutional) wouldn't affect the marriage status of couples who tied the knot before it passed.

The petition added the counties of Alameda, Marin, San Mateo, and Santa Cruz, and the cities of Fremont, Laguna Beach, Oakland, San Diego, Santa Cruz, Santa Monica, and Sebastopol. Combined with Santa Clara County and the city and county of Los Angeles, which had signed onto earlier versions, the challenge now includes governments representing 17.2 million Californians.

"The issues before the court are about larger significance than marriage equality alone, this is about whether a large group of voters can divest a minority of their constitutional rights," says city attorney spokesperson Matt Dorsey. "If a bare majority can do this to gays and lesbians, there's nothing to stop a bare majority from doing it to groups based on religion or gender under the California Constitution."

Additionally, the petition adds seven gay and lesbian couples married this year. The couples are represented pro bono by the private San Francisco-based firm Howard Rice Nemerovski Canady Falk & Rabkin. The couples -- hailing from San Francisco, Oakland, Alameda and Modesto -- address the state Supreme Court's call for briefings in November on whether Prop. 8 would be
retroactive, invalidating the marriages before the Nov. 4 election. They argue that their marriages would still be valid.

But the petitioners are hoping it will never come to that question, and the court will rule Prop. 8 was unconstitutional in the first place, says Howard Rice partner Amy Margolin.

"This is really about securing marriage rights for everyone in California, not just the couples who had the opportunity to marry [before Prop. 8 passed]," Margolin says.

Howard Rice first became the city's primary outside counsel on the same-sex marriage issue when the state stopped San Francisco from marrying couples in 2004. The firm estimates they've donated some $2 million worth of work to the city since then.

The high court must grant the city permission to amend the complaint. The petition will be considered by the court, which could hear oral arguments on the constitutionality of Prop. 8 as early as March 2009, according to the state's Administrative Office of the Courts.