Jim Wilson/The New York Times
Sara Eisenberg '05 (third from right) is working on San Francisco city attorney Dennis J. Herrera's (center) team of lawyers challenging California's ban on same sex marriage.
Ban on Gay Marriage Led Lawyers to Shift Role
By Adam Liptak
March 19, 2013 New York Times - SAN FRANCISCO — 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 Supreme Court case to be argued next Tuesday.
The move was also the beginning of a kind of civil disobedience movement by government officials. Around the nation, 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 palatial 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 Obama and Gov. Jerry Brown of California urged courts to hold them unconstitutional.
That has complicated the Supreme Court’s job in challenges to Proposition 8, California’s ban on same-sex marriages, and to the federal Defense of Marriage Act. Because the plaintiffs and defendants in both cases agree that the laws under review are unconstitutional, there is a question about whether the justices have anything to decide. Indeed, when the justices in December agreed to hear the 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, a law professor at Chapman University in Orange, Calif., and the chairman of the National Association for Marriage, which opposes same-sex marriage, 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 Gavin Newsom, then the mayor of San Francisco and now the state’s lieutenant governor, instructed city officials here 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 Proposition 8 case, 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 the trial.
Mr. Olson, a former United States 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.
“Their briefs have been superb,” Mr. Olson said.
That is probably partly a testament to the credentials of the team Mr. Herrera assembled. Even in a difficult job market for lawyers, Supreme Court clerks command enormous payments for just joining private firms.
“Bonuses my year were $225,000,” recalled Christine Van Aken, who in 2004 and 2005 clerked for Justice David H. Souter. (Signing bonuses are now in the neighborhood of $280,000.)
Vince Chhabria, who clerked for Justice Stephen G. Breyer and joined the city attorney’s office after a stint at a firm, questioned Ms. Van Aken’s judgment. “I remember telling you,” he told her, “that you were insane to give up a quarter-million-dollar bonus.”
There are two other clerks from the chambers of the more liberal justices — Aileen McGrath worked for Justice Breyer, and Sara Eisenberg for Justice John Paul Stevens — along with one surprise.
Leila Mongan served as a law clerk to Justice Clarence Thomas, who is by some measures the most conservative justice on the current court. Ms. Mongan said she had joined the office because “it’s a place to do public law in an ambitious office that takes on important cases.”
Therese Stewart, Mr. Herrera’s chief deputy, said Ms. Mongan was an important sounding board. “She’s our outside perspective,” Ms. Stewart said.
Mr. Herrera said he was not surprised by the caliber of the talent he has been able to attract.
“Why do they go to law school in the first place?” he asked. “They want to be involved in cases of some moment.”
Besides, he added, they do not starve. “The top I can pay is about two hundred grand,” he said. That is comparable to the pay of junior associates at big law firms, although it comes without the signing bonus. The San Francisco lawyers have made distinctive contributions to the case. They were largely responsible for the argument that prevailed in the United States Court of Appeals for the Ninth Circuit here, one that struck down Proposition 8 but stopped short of endorsing logic that would require same-sex marriage in all 50 states. (The ruling has been stayed while the Supreme Court considers the case.)
In its brief in the Supreme Court, the city repeated those arguments, telling the justices that some features of the state’s experience could allow for a ruling short of establishing a nationwide right.
Civil unions in California, as in seven other states, give same-sex couples all of the legal benefits and burdens of marriage while withholding only the name. California is, moreover, the only state to have withdrawn the right to marry after it had been established by its Supreme Court.
Those factors, the city’s brief says, could allow the United States Supreme Court to strike down the state’s ban. The brief also argued that the failure of California officials to appeal deprived the appeals court and the Supreme Court of jurisdiction over the case. The brief for the proponents of Proposition 8 said that they were entitled to represent the interests of the state and that the justices should not allow executive branch officials to veto the wishes of the electorate.
The brief filed by Mr. Olson and Mr. Boies is more ambitious than the city’s. It calls for the application of “heightened scrutiny,” requiring a showing that Proposition 8 is “substantially related to an important government objective.” Victory on that point could put all same-sex marriage bans at risk.
The brief makes a comparatively abbreviated argument about the proponents’ standing, another indication that Mr. Olson and Mr. Boies want to win big.
Ms. Stewart, one of the city’s lawyers, said the two briefs were complementary and that the two teams “could not be more supportive” of each other.
“Our view, perhaps because we are more cautious,” she said, “was to give the Ninth Circuit and the high court the whole panoply of options.”
A version of this article appeared in print on March 19, 2013, on page A1 of the New York edition with the headline: Marriage Ban Led Lawyers To Shift Role.