The other man
The untold story behind San Francisco's audacious fight that led to the California Supreme Court's decision to legalize gay marriage.
By Susan Kostal, Photograph by Lenny Gonzalez
On March 4, 2008, aka Gay Marriage Day at the California Supreme Court, the press conferences in city hall started at 7:30 a.m., even before the main doors were unlocked. Still, the place was mobbed with familiar faces, though the one I was searching for was notably missing. I’d expected Gavin Newsom—“the Marrying Man,” as the Advocate dubbed him in an adoring profile around this time—to be everywhere that historic morning. But here, at least, the spotlight was on city attorney Dennis Herrera, cheerful and composed in a sharp gray suit and lavender shirt and tie. This was as it should be. The mayor may get all the credit, or blame, for pushing the marriage-equality issue before the Supreme Court, but the person who deserves it—San Francisco’s real Marrying Man—is Herrera.
Compactly built, with close-cropped, graying hair and an accent that hints at his native Long Island, Herrera served as the master of ceremonies, making a few low-key remarks, then introducing the same-sex couples at the heart of the case. After they spoke, and their lawyers grandstanded, the key players headed across the street to the Supreme Court. The rest of the crowd made for the Main Library—Newsom’s destination after his own “press availability” was over—and the basement of the state building to watch the proceedings via live feeds. The lines at the metal detectors stretched out the door, calling to mind the queues of gay and lesbian couples waiting to wed four years earlier, during that giddy winter of love.
The oral arguments lasted three-plus hours (one hour is typical), and by the time they were over, it was anyone’s guess how the seven justices would decide. My own bet was a 4–3 vote in favor of marriage equality, which would be a remarkable turn of events for many reasons, the least of which is that only one of the justices, Carlos Moreno, is a Democratic appointee. After the arguments, the lawyers and litigants gathered on the courthouse steps for yet another briefing. Given the commanding performance of his top deputy, Therese Stewart, who argued the case for the city and oversaw strategy for the entire lawsuit, a stirring political speech from Herrera was very much in order. But Obama—or, for that matter, Newsom—he’s not. In measured tones, Herrera merely thanked the justices for hearing the case and said he looked forward to their decision, due
by June 1. He never even took his hands out of his pockets.
It’s not that Herrera lacks a fiery side. More than once, he’s been observed speaking so intensely to Matt Dorsey, his longtime friend and press secretary, that afterward people have asked Dorsey what the two men were fighting about. “I tell them we weren’t arguing, we were talking—we’re both Italian,” Dorsey laughs. (Actually, Herrera is only half-Italian, on his mother’s side; his father, a psychiatrist, emigrated from Colombia.) His gay-marriage allies have never doubted his zeal. “He is very passionate about fundamental justice,” says Kate Kendell, executive director of the National Center for Lesbian Rights, a co-counsel in the case. “But he doesn’t dominate a room. He listens to other people’s opinions. He’s very deliberative.”
This even-keeled style, so different from that of the hotheads and loudmouths who populate much of San Francisco politics, is a requirement in his job as “adviser, priest, and confidant” (the description of his predecessor, Louise Renne) to the mayor, the Board of Supervisors, and dozens of city departments and agencies. In the past year alone, Herrera and his staff of 185 or so lawyers have taken lead roles in the Ed Jew residency fraud case; the fatal tiger mauling at the San Francisco Zoo; the pissing match between Newsom and board president Aaron Peskin; and district attorney Kamala Harris’s $5.4 million federal-grant fiasco. They also defend the city against nearly 4,000 claims a year—everything from contract disputes to wrongful-death suits against Muni. “The unique nature of this position is that you are on the fulcrum, with the political hubbub swirling around you,” Herrera says. “Being calm and objective and patient is vitally important. A snap judgment can get you in trouble.”
Keeping a level head has never been more critical than it is in the same-sex-marriage case. Public sentiment on the issue is 46 percent in favor, 48 percent opposed in the latest statewide polls—an improvement from eight years ago, but far from a consensus. Many people still blame Newsom’s rashness for costing John Kerry the 2004 presidential election, and no one (in San Francisco, at least) wants to give right-wingers a similar opening this year; nor do they want to hurt the marriage cause before the state Supreme Court, whose ruling
will reverberate far and wide. “It’s important that we not come off as doing this for just showmanship,” Dorsey says. “There are really important issues at stake. It’s not about pounding the table.”
Herrera’s hands-in-his-pockets demeanor underscores what may be his biggest contribution to the gay-marriage movement: his nice-guy normalcy. “He’s very down-to-earth,” says Kendell, who recalls being smitten by his “great blue eyes.” “There is a vulnerability to him that is very endearing, and actually a strength for someone who is in public office.” (I know what she means: One day, as I followed Herrera around for this story, I actually scratched a smudge off his jacket with my fingernail, something I have never done for any other elected official.) Newsom may have kicked things off in a spectacular fashion, but four years of Mayor Behaving Badly (cavorting suggestively in the pages of Harper’s Bazaar with his then wife, Kimberly Guilfoyle; hooking up with a parade of party girls and one barely out-of-the-nest twentysomething; and, of course, screwing around with his top aide’s wife) have eliminated him as a poster boy for marriage—anyone’s marriage.
The fact that Herrera—a 45-year-old family man who takes his son to kindergarten three days a week and helps out, tie still knotted, at Little League practice—has chosen to carry the banner of marriage equality has been a powerful statement, says Tim Silard, policy chief for DA Harris. “Here is a straight man, and a Catholic, who is taking a consistent, aggressive, proactive, and affirmative stance in advocating for gay issues, shoulder-to-shoulder with us in this cause for civil rights.”
In doing so, Herrera has helped to move the same-sex-marriage debate from the margins and reframe it as a broader civil-rights issue, a shift the advocacy groups couldn’t have pulled off on their own. “Most people in this country are ambivalent about lesbian and gay issues,” Kendell points out. “When someone who is nongay, particularly a leader who commands respect, stands up for the rights of gay people and says, ‘This is my fight,’ it moves mountains.”
The city attorney’s office had a kick-ass reputation long before Herrera was elected in 2001. The credit goes to Renne, who ran the place for 16 years and pioneered the aggressive use of litigation—suing gunmakers,
tobacco companies, banks, and utilities—by cities to achieve progressive goals. Talented young lawyers flocked to work for her, including Herrera, a George Washington University Law School grad, in 1993. His specialty, maritime law, encompassed some very gnarly issues (ownership of tankers and shipping lines, regulation of imports and exports, labor contracts and disputes); it also emphasized negotiation, an approach that’s proven fruitful in his current role.
After a stint as chief of staff for the U.S. Maritime Administration under Bill Clinton, Herrera returned to San Francisco, where Willie Brown soon appointed him to the police and public-transportation commissions. Democratic Party leaders began urging him to run for office, but the only job he considered was Renne’s, after she decided against another term. Starting off with zero name recognition against a well-established opponent (Jim Lazarus) with influential endorsements (Dianne Feinstein, Newsom), Herrera still managed to eke out a victory in a poorly attended off-season runoff.
Herrera’s first cases in his new job included defending the city’s affordable housing laws, suing City Tow for unfair competition, and pursuing fraud claims against the construction company overseeing the expansion of SFO. An early brush with the gay-couple issue came in 2003, when his office worked with the city assessor to make property laws more equitable for domestic partners. Close aides such as Stewart and Dorsey, both of whom are gay, no doubt helped raise Herrera’s consciousness about other forms of discrimination against same-sex couples. But the larger issue of whether existing marriage laws violated the state’s constitution, he admits, “wasn’t in the forefront of my mind.”
That changed, however, a couple of weeks after Newsom assumed office in early 2004. As the mayor tells it in Pursuit of Equality, a documentary by filmmakers Geoff Callan (his brother-in-law) and Mike Shaw, he was in the audience for the State of the Union address, as a guest of Nancy Pelosi, when President Bush began railing about the need to “defend the sanctity of marriage” as “a union of a man and a woman” and to protect the country from “activist judges” on the Massachusetts Supreme Judicial Court and elsewhere who seemed bent on radical change. “They were talking purely in partisan terms
[about something that would] leave many Americans behind,” Newsom recalls. It was, he adds, a moment of “real clarity.” A charged-up mayor flew back to San Francisco with the far-fetched—and, many thought, reckless—goal of using the powers of his office to make same-sex marriage happen now.
For years, gay and lesbian couples had been showing up at city hall on Valentine’s Day, asking for marriage licenses, only to be turned away by the clerk of the court. What would happen if the clerk granted the licenses instead? In early February 2004, after meeting with Newsom, Herrera and Stewart went into overdrive, mapping out a strategy and crafting new licenses. (These included a disclaimer advising gay and lesbian couples to seek legal counsel to avoid inadvertently forfeiting domestic-partner benefits.) The first wedding—for activists and icons Del Martin and Phyllis Lyon, a couple for more than 50 years—took place on February 12, and by the following week, more than 2,200 couples had licenses in hand.
The Herrera team’s most critical decision was how to react when two conservative groups swiftly challenged the marriages as illegal. The tsunami of weddings coincided with the long Presidents’ Day weekend, which meant that opponents could do nothing but stand by helplessly and rage until the courts reopened the following Tuesday. Herrera claims this fortuitous timing wasn’t planned, but he admits, “We used it to our advantage.” Given the Massachusetts court’s ruling overturning that state’s same-sex marriage ban, it was tempting to mount a full-scale attack on the constitutionality of California’s marriage laws. But the Supreme Court justices “were hopping mad,” Stewart recalls, and might have gone ballistic if forced to take up the sweeping marriage-equality issue before they were ready. So she and Herrera played it shrewd, focusing on the narrower question of whether Newsom had the power to grant licenses that violated state law. Meanwhile, they used every procedural and substantive argument they could think of (for example, claiming that opponents had not made a showing of irreparable harm) to keep the marriages going for as long as possible.
By the time opponents were finally able to put a stop to them, almost a month later, nearly 4,000 couples had exchanged vows. Those weeks had a profound impact on the debate, transforming gay
marriage from an only-in–San Francisco freak show into a feel-good movement that swept the world. Even veteran politicos were moved: “I’m not somebody who cries at weddings,” says Dorsey, “but I was crying every day.”
Day after day, couples and their families assembled (among them were Rosie O’Donnell and her partner, Kelli Carpenter), some having traveled thousands of miles, along with beaming elderly parents and bored kids. Day after day, reporters and photographers showed up to record the newlyweds’ stories of love and hope. The Scott Peterson murder trial, about to begin jury selection in Redwood City, assured that an unusually large number of national-media types were around to feed the frenzy. Suddenly, same-sex couples were real people, with real relationships and real emotions, and the idea of their marrying didn’t seem so odd—or so threatening. A few other cities—including Portland, Oregon, and New Paltz, New York—started granting licenses and performing ceremonies. The phenomenon forced a whole country of fence sitters to decide how they felt. “There is no more important mechanism for changing people’s hearts and minds than real-life experience and human contact,” Kendell says. “Those people in line drove home the injustice of the marriage laws in a way that nothing else could have done.”
More than anything, the four-week lovefest helped build a case that the constitutionality question was ripe for the courts. Within an hour after the city clerk was finally forced to stop issuing licenses, Herrera decided to file the grand-gesture lawsuit he had put off before. He didn’t have to take this momentous step; technically, his job of defending Newsom was done. “He could have said, ‘Let’s not do it,’” Stewart says. “Politically, he could have left it to the mayor to take all the hits.” Gay and lesbian groups would almost certainly have pursued their own case if the city attorney hadn’t acted. But by taking the lead—Herrera says he never even consulted Newsom—he again made the point that marriage equality is a mainstream concern. “It cements that this issue is not tied to the political
interests of one group,” says DA Harris’s aide, Tim Silard. “We all rise and fall together.”
Over the next few years, as the suit made its way through the courts, Herrera and Stewart became a familiar tag team: she handled the nitty-gritty legal arguments; he provided the sound bites. Behind the scenes, Herrera worked to persuade other cities to sign on to amicus, or “friend of the court,” briefs, to which appellate justices pay close attention. Predictably, West Hollywood, Santa Monica, and Santa Cruz needed no convincing; thanks in part to Herrera’s personal campaign, seven of California’s eight largest cities eventually joined the cause.
The most telling conversion was that of San Diego, a military town that remains deeply conservative despite its sizable gay community. At the request of Democrat Toni Atkins, the only lesbian on San Diego’s city council, Herrera and Stewart flew south to make a presentation to her colleagues last September. “Without a doubt, I did not think the council was going to pass this,” says its president pro tem, Republican Jim Madaffer. But even Madaffer ended up voting to support the amicus brief. Herrera was “clear, concise, really hard to argue with,” he says. “You just have to look at it as a fundamental issue of fairness or unfairness. He made such a strong and forceful impression.”
Still, mayor Jerry Sanders, a Republican former police chief, was said to be adamant. “The word he put out was, he was going to veto it,” Stewart says. Then Sanders called a press conference that quickly went viral on YouTube. He announced he’d had a change of heart and would support the amicus effort (though from the stoic look on his wife Rana’s face, you’d think he was confessing to hiring call girls or taking bribes). Twice, Sanders stopped for water; several other times, he simply choked up. “I’ve decided to lead with my heart, which is probably obvious at the moment,” he stammered. “I am trying to do what I believe is right.” Referring to his daughter, a lesbian, and staffers like his press secretary, a gay man, he said, “I want for them the same thing that we all want for our loved ones: for each of them to find a mate whom they love deeply, and who loves them back…. In the end, I couldn’t look any of them in the face and tell them their relationships, their very lives, were any less meaningful than the marriage I share with my wife.” With that, he said thank you, gathered his notes, and quickly left the podium.
If the California Supreme Court does side with Herrera, it won’t
be because the justices suddenly find themselves wanting to wave the rainbow flag. The reason is more likely to be intellectual frustration with the flaccid case put forward by the defenders of traditional marriage—and Stewart’s deftness in cutting those tired arguments to shreds. “She was laser-sharp in her ability to see through the haze and articulate the reasons behind the city’s position,” says Kamala Harris. Stewart’s colleagues got her ready by putting her through two mock trials: “We were tougher on her than the Supreme Court was,” says Buck Delventhal, a top attorney in the office.
Even if the court allows wedding bells to start pealing in time for this year’s Gay Pride parade, the issue will move to another forum very soon. Advocates are confident that they can defeat the Limit on Marriage initiative, the constitutional amendment that the Protect Marriage coalition appears to have muscled onto the November ballot. (We’ll find out sometime in June.) If they do, they’ll try to persuade Governor Schwarzenegger, who opposes the amendment, to sign the next same-sex-marriage bill the legislature passes (he’s twice vetoed versions sponsored by assemblyman Mark Leno). “If we lose, it’s done, with respect to the courts,” acknowledges Bobbie Wilson, a partner at Stewart’s old law firm, Howard Rice, which has contributed millions of dollars’ worth of pro bono work to the case. “But the political process isn’t done.”
Herrera, meanwhile, has other far-reaching matters to attend to. Just a few weeks after the gay-marriage arguments, attorneys in his office faced another grilling, this time by federal appeals judges in Pasadena. The subject: Healthy San Francisco, the universal-healthcare program dreamed up by Newsom and supervisor Tom Ammiano that has drawn the wrath of restaurant groups and other employers. A lower court ruled against the city, but some health-benefits experts believe the Ninth Circuit is likely to reverse that decision—though the business-friendly U.S. Supreme Court will have the last word. Once again, it’s up to Herrera and his team to figure out how to turn a liberal fantasy into a sweeping reality. And once again, if they succeed, it’s Newsom who’ll get all the glory.
If Herrera minds, he doesn’t show it—but then, he doesn’t seem to have Newsom-size ambitions. The city attorney’s job
carries no term limit, and Herrera, up for reelection for a third time next year, can probably keep it for as long as he wants. He doesn’t strike me as someone who craves the political spotlight enough to put up with all the nastiness that goes with it. His most controversial issue to date has been civil gang injunctions, and even his most vocal critic on the topic, public defender Jeff Adachi, says: “We’re still friends.” A race for mayor wouldn’t be quite as genial.
Of all the important cases his office has tackled, Herrera surprises me by saying he is most proud of getting $1 million in funding for a renovated Boys & Girls Club (named after Willie Mays) in Bayview/Hunters Point as part of a settlement with AIMCO, a Denver-based landlord, over building-code violations in low-income housing. Herrera persuaded the city to pony up additional money, and the San Francisco Giants provided a coach to field a Junior Giants team there. The club opens this summer.
At the groundbreaking last summer, city pols lined up with Mays, Major League Baseball commissioner Bud Selig, and Giants owner Peter Magowan to bask in the moment. Even Alice Waters made an appearance. Herrera, the elected official most responsible for the day’s celebration, stood in the back, perfectly happy, where the cameras couldn’t quite catch him.
Freelancer
Susan Kostal has written for
San Francisco about the death of law firm Brobeck, Phleger & Harrison and the rise of social-skills classes for Bay Area kids.
Photographer
Lenny Gonzalez has been published in
Rolling Stone,
Esquire, and
Forbes.
