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.
Highlights effect of Asian American grassroots organizing for marriage equality and tension with centering of impact litigation lawyers and plaintiffs of Perry.
Discussion of the strategic choices in building an evidentiary record of expert testimony in Windsor's challenged to DOMA.
Discusses strategic choices of movement for marriage equality, including impact litigation over legislation.
Examination of how the LGBTQ movement has worked through multiple legal and non-legal institutions simultaneously, and the effects each has had on the others.