California AG comes out against Prop 8 in federal suit

by Roger Brigham

EDGE Media Network Contributor

Saturday June 13, 2009

Just as he did when marriage supporters sued to overturn the Proposition 8 ban on nuptials for same-sex couples in state Supreme Court, California Attorney General Jerry Brown has filed papers agreeing that Prop 8 should be thrown out, this time in the federal district court where Prop 8 is being challenged as a fundamental violation of Constitutional rights.

In his legal response Friday, Brown wrote that the domestic partnerships to which Prop 8 restricts same-sex couples "are not equal to civil marriage, and that this unequal treatment denies lesbians and gay men rights guarantees by the Fourteenth Amendment to the United States Constitution.... Even if domestic partnership were the substantive equivalent to civil marriage, it would still be unequal to deny civil marriage to same-sex couples because ... domestic partnership would carry with it a stigma of inequality and second-class citizenship."

Brown agreed in his filing that Prop 8 violates both the equal protection and the due process provisions of the 14th Amendment.

"Taking from same-sex couples the right to civil marriage that they had previously possessed under California's Constitution," he wrote, "cannot be squared with guarantees of the Fourteenth Amendment.... This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution.

"More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man."

Both Brown and Governor Arnold Schwarzenegger, however, both asked the court not to grant the request for a preliminary injunction that would suspend the same-sex marriage ban, arguing the on-again/off-again roller-coaster ride was too much for Californians to contend with. But marriage equality activists were quick to praise the support of Brown, who had also argued unsuccessfully against prop 8 in its state court challenge.

"Today's filing by Attorney General Jerry Brown underscores that Proposition 8 is a clear violation of the United States Constitution because it denies all people equal rights," said Chad Griffin, Board President of the American Foundation for Equal Rights, which took the appeal to the federal court on the behalf of two California couples. "We are confident that our state's chief legal officer's strong opinion will help this case move quickly through the courts so that every Californian will soon be treated equally under the law."

The plaintiffs, Kris Perry & Sandra Stier, and Paul Katami & Jeff Zarrillo, issued a joint statement through AFER: "We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great."

Contrasting Brown's action against President Obama's failure to stop the Justice department from filing a brief supporting the Defense of Marriage Act in another lawsuit filed to restore same-sex marriage in California, Geoff Kors, executive director of Equality California said, "The time has come for all elected leaders to follow Jerry Brown's example and stand up for equality for all Americans, regardless of sexual orientation or gender identity. Equality California will continue our position of not endorsing or supporting any candidate for any level of public office who does not completely and unequivocally support total equality for our community."

After the passage of Prop 8, the plaintiffs were denied marriage licenses by the state because they are same-sex couples. The case was filed May 22 in the United States District Court, Northern District of California.

According to AFER, Perry and Stier have been together for nine years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency promoting education and health for children under five. Stier, an Iowa native, is Information Technology Director for Alameda County Behavioral Health Care Services Agency. The couple, who live in Berkeley, first tried to marry in 2004, after the City of San Francisco began issuing licenses.

Katami and Zarrillo have been together for eight years and live in Burbank. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo, a New Jersey native, is the General Manager of a theater exhibition company.

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.