By Margie M. Palmer

On Tuesday, Sept. 4, a measure that would have endorsed the filing of a friend-of-the-court brief in support of the California Marriage Equality Case was defeated by the San Diego City Council. Arguments for and against the motion were heard by the Council, with the subsequent vote ending in a 4-4 tie. Because a majority vote had not been reached by either side, no action will be taken. Had the measure passed, San Diego would have joined more than 250 religious and civil rights organizations, including the California NAACP, Mexican American Legal Defense and Educational Fund, California Council of Churches, Asian Pacific American Legal Center and the National Black Justice Coalition, in filing friend-of-the-court briefs in support of marriage for same-sex couples. At the current time, San Diego is the only city among the state's five largest to have not filed a supporting brief.

Proposed by out Councilmember Toni Atkins, the friend-of-the-court brief would have been filed in support of litigation which is scheduled to be heard by the California Supreme Court later this year. The case in question—titled, In re Marriage Cases—is a collective action represented by the National Center for Lesbian Rights (NCLR), Lambda Legal, the American Civil Liberties Union (ACLU), Heller Ehrman LLP, and the Law Office of David C. Codell, and is being brought on behalf of 15 same-sex couples, Equality California and Our Family Coalition. Attorneys for the plaintiffs argue that California is violating its own constitution by denying same-sex couples the freedom to marry.

More than two dozen citizens attended the City Council hearing to voice their opinions. Opening statements in favor of the brief were lead by San Francisco City Attorney Dennis Herrera. “The legislation before the California Supreme Court represents defining civil rights and equality for all of humanity,” Herrera said. “Discrimination has no place in 21st-century California. This principle has been underscored in four of California’s other largest cities. Marriage is a tremendously important institution in our society. It is treasured, honored and respected. The ability to marry is the ultimate sense of belonging in our society, and it is described [by] the courts as being a fundamental right. The case before the California Supreme Court is not about compelling the church to perform marriage ceremonies; it’s a case which will talk about state marriage licenses and whether or not a government can provide that to some citizens and not to others. It is about an important civil right which adult citizens have—to marry the person of ones choice. Some argue that domestic partnerships are good enough, but there is a difference between good enough and equal.”

Opponents of the measure also had their chance to speak. “For this Council to take this independent action is morally wrong and is against what the majority of your constituents would vote for,” said James Lee Lambert. “This issue is about the normalization of a sexual behavior and lifestyle that is only rivaled by one standard and that is traditional marriage.”

Ex-gay religious activist James Hartline was also in attendance. “In the past five days, I have received calls from hundreds of San Diegans who are outraged by this action, and we do not want the City Council supporting an action in our name to redefine marriage. You do not have the right to vote to use our name saying we are in support of the ill-conceived lawsuit.”

Although more than a dozen community members attended the Sept. 4 hearing to speak against the motion, Councilmember Donna Frye expressed concern that insufficient notice was given to opponents of marriage equality. San Diego City Attorney Michael Aguirre disagreed. “Frye raises a very important issue regarding process. [Although] there was not a lot of information about it in the newspaper, having come here today and listened to the presentation, read the paperwork and watched the articulate opposition, the issue is that a lot of people believe that gay people should not have the same rights as people who are not gay, and they should not have the same right to marry as people who are not gay. That's the entirety of the opposition. I believe [passing the motion to file the brief] is the right thing to do, and that justice delayed is justice denied.”

Councilmember Jim Madaffer added, “Look at what used to be accepted by some—slavery, denying people the right to vote, job discrimination. We have seen discrimination against the minority by the majority, and in the past 100 years you can see how dramatic the world we live in has changed. What about a woman’s right to vote? Racial equality? This is a civil rights issue, and I have a lot of friends of mine who speak highly of civil rights, and that's all I can think about. The issue is whether or not one group of Californians can hold a right which is afforded to others. I think it’s wrong to deny those rights to persons or groups based on traditions and animosities seen by certain segments against our society.”

Despite the statements made by Aguirre and Madaffer, Frye—who has oftentimes received overwhelming political support from the San Diego LGBT community— joined Kevin Faulconer, Tony Young and Brian Maienschein in voting against the measure. Since the vote resulted in a tie, the item has been rescheduled for a vote from the Council on Sept. 18.

“I was deeply disappointed by [the outcome of the] vote,” Atkins said. “I had hoped that California’s second-largest city would go on record in support of equal protection for all of the state’s citizens under our state constitution.”

"I would say we were disappointed [with the vote],” added Therese Stuart, associate attorney for the city of San Francisco and lead counsel for the In re Marriage Cases. “We knew going into it that it was going to be a close vote, but we were very surprised that Donna Frye of all people would essentially cast the deciding vote against us. Apparently Councilmember Frye claimed her issue was merely procedural, and we will see if that is really the case when San Diego revisits the issue on the 18th of September.”

When questioned about her decision to vote against the measure, Frye said, “I am, and have always been, a strong supporter of equal rights for all members of the community. I am also an equally strong supporter of the public’s right to participate, especially concerning matters of significant public controversy. Specifically, I was concerned about the lack of public notice that this item was on the City Council agenda The item was docketed on the Wednesday before the Labor Day weekend, which resulted in less than a one-week notice. It became clear to me that many people who were concerned about this issue were unaware that the City Council was even considering it, let alone voting on it. I was also concerned that the entire item was alloted less than one hour when past items that were viewed as controversial have had whole days set aside to allow for the public to express their point of view and be heard. By continuing [debate on] this issue until Sept. 18, I believe that both of those concerns will be properly addressed. Just as all members of the community have the right to be treated equally, all members of the community have the right to be heard and participate in government decisions. Following Tuesday's vote, I was in a procedural position to support the request [that] an amicus curiae brief be reconsidered, and did so. This issue is scheduled again for Sept. 18. I intend to support the request once the public has had a reasonable opportunity to be heard.”