Legal Enforcers in New Territory ; Same-Sex Marriage Cases Spur 'Civil Disobedience' by Government Officials

By Liptak, Adam | International Herald Tribune, March 19, 2013 | Go to article overview

Legal Enforcers in New Territory ; Same-Sex Marriage Cases Spur 'Civil Disobedience' by Government Officials


Liptak, Adam, International Herald Tribune


When San Francisco officials sued to strike down a state ban on same-sex marriage, a legal chain reaction was set in motion that gave rise to a U.S. Supreme Court case to be argued this month.

Nine years ago, city officials here sued to strike down a state ban on same-sex marriage. It was the first government challenge to such a law, and it set in motion a legal chain reaction that gave rise to a momentous U.S. Supreme Court case to be argued this month.

The move also marked the beginning of a kind of civil disobedience movement by government officials. Around the United States, executive branch officials started to abandon their traditional role, which is to enforce the laws and defend them when they are challenged in court.

"We're defense lawyers," Dennis J. Herrera, the city attorney, said in his office in San Francisco's City Hall. "We defend laws that are on the books. And we got a lot of heat at the time for stepping out of that traditional defense role."

In the years that followed, Mr. Herrera's office -- which now includes five former Supreme Court law clerks, more than some major law firms -- has been involved in every phase of the legal war over same-sex marriage in California.

San Francisco's strategy eventually spread to the State of California and the federal government. Instead of defending state and federal laws defining marriage as a union between a man and a woman, President Barack Obama and Governor Jerry Brown of California urged courts to hold them unconstitutional.

That has complicated the Supreme Court's job. Indeed, when the justices in December agreed to hear two same-sex-marriage cases, they went out of their way to ask for briefs on whether the court has the power to decide them in light of the actions of government officials.

John C. Eastman, chairman of the National Association for Marriage and a law professor at Chapman University in Orange, California, said government officials in the two cases had demonstrated "a cavalier attitude toward their duties to enforce the law." He was particularly critical of Mr. Herrera's suit, which followed a brief period in 2004 during which Mayor Gavin Newsom instructed officials in San Francisco to issue marriage licenses to same-sex couples. "It was exhibiting lawlessness," Professor Eastman said.

Mr. Herrera said it was sometimes necessary for government lawyers to attack the laws they are charged with defending. "When a disfavored minority is being targeted," he said, "it's up to a public law office to stop it."

San Francisco's role in the case challenging California's ban on same-sex marriage, Hollingsworth v. Perry, No. 12-144, has been overshadowed by that of Theodore B. Olson and David Boies, the prominent lawyers who in 2009 filed the suit challenging the initiative. The city promptly intervened, and the two teams of lawyers worked closely together at trial.

Mr. Olson, a former U.S. solicitor general who has argued some 60 cases in the Supreme Court, said the quality of the work from Mr. Herrera's office was exceptional.

"They are very good," Mr. Olson said of his counterparts. "Their briefs have been superb."

That is probably partly a testament to the credentials of the team Mr. Herrera assembled. Even in a difficult job market for many lawyers, Supreme Court clerks command enormous payments just for joining a private firm.

"Bonuses my year were $225,000," recalled Christine Van Aken, who in 2004 and 2005 clerked for Justice David H. …

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