The Role of Public Law Offices in Marriage Equality Litigation


On February 23, 2011, the Department of Justice (“DOJ”) announced thatPresident Obama had directed it to stop defending Section 3 of the Defense of Marriage Act (“DOMA”). The President’s decision and the DOJ’s subsequent briefs arguing that Section 3 of DOMA is unconstitutional continue a trend that can be traced to San Francisco’s actions in Perry v. Schwarzenegger and prior marriage equality litigation in state court.

In this Comment, we argue that San Francisco’s role in Perry and prior cases introduced the idea that public law offices could challenge laws like Proposition 8 and set the stage for similar responses by the State of California, other state and local governments, and federal officials. Using testimony and exhibits from Perry, we explain the reasons San Francisco chose to become a plaintiff in marriage equality litigation, describe the impact of San Francisco’s evidence beyond the litigation itself, and urge other public law offices to consider a similar approach.

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