If this city prevails in its quest to legalize same-sex marriage, it won't be the first time San Francisco's elected city attorney has shaped the law.
Behind the scenes of the same-sex marriage phenomenon is an unconventional public law office that has earned a nationwide reputation for its aggressive legal tactics.
While other municipal lawyers stuck to bread-and-butter duties -- defending their clients and protecting them from liability -- former San Francisco City Atty. Louise Renne took the offense: Before any other city or state had done so, she sued the tobacco industry, netting $12 billion in a settlement split evenly between the state and local governments.
Then came a lawsuit against Bank of America for allegedly mishandling hundreds of millions of dollars in municipal bond proceeds, a suit against the gun industry for allegedly contributing to violence, and more. In some cases other cities joined in, benefiting from San Francisco's legal moxie.
"If I had to rank cities in aggressiveness on affirmative litigation, I would clearly put San Francisco at the top," said Henry Underhill Jr., executive director of the International Municipal Lawyers Assn.
Critics deride the legal actions as a waste of taxpayer dollars that gives San Francisco improper sway over businesses and consumers in other states.
"These lawsuits are ... an attempt to circumvent the constitutionally prescribed legislative process in order to regulate industry through litigation," said Lawrence Keane, general counsel of the Connecticut-based National Shooting Sports Foundation, a defendant in the gun litigation, which was joined by 11 other California cities.
Added lawyer Robert Tyler, who has challenged the city on gay marriage and rights for domestic partners: "City attorneys' offices
But in San Francisco, activism is a tradition. Working with left-leaning city officials, and answering to the city's overwhelmingly liberal voters, the office of the city attorney has redefined its role and influenced others around the country.
The city, for example, approved the country's first law requiring city contractors to offer employees' domestic partners the same benefits granted the spouses of married workers. The city's successful defense of the law prompted cities across the country -- including Los Angeles -- to craft similar ordinances.
Legal Fight in Spotlight
These days, San Francisco's city attorney's office is again at the center of a legal fight with national implications -- this time under Renne's successor, Dennis Herrera.
True, it was Mayor Gavin Newsom who vowed to offer marriage licenses to same-sex couples. But it was Herrera who gave him the green light, putting Chief Deputy City Atty. Therese Stewart on the case to devise a strategy that, if successful, would legalize gay marriage across California.
The move came less than two years after Herrera's office drafted a similar opinion that domestic partners should be treated the same as married spouses -- and spared steep property tax assessments on the death of a partner.
"Doing what we can do to ensure civil rights for everyone is not something we are going to back away from," said Herrera, 41, who was elected in 2001 with support from Renne and the gay and lesbian community.
His office filed briefs Thursday with the California Supreme Court asking the court to refrain from deciding whether Newsom was entitled to break state laws defining marriage as heterosexual until the constitutionality of those laws is resolved. Herrera has filed suit against the state in San Francisco Superior Court challenging those statutes as unconstitutional.
"The sheer sensitivity of it may have driven most lawyers to say, 'You shouldn't do it,' " said Jon B. Streeter, president of the Bar Assn. of San Francisco, whose board recently voted to support the city's position. "It would have been easy to say, 'No.' "
In its big-ticket consumer lawsuits, the city has not always prevailed: A suit against lead paint manufacturers was thrown out last year by a Superior Court judge who ruled that the statute of limitations on the claims had expired.
The attempt to stem gun violence -- which cost San Francisco $1 million to litigate -- also suffered a defeat when gun manufacturers were dismissed from the suit. In a settlement, gun distributors paid only $70,000 to the dozen cities and counties that had ultimately joined as plaintiffs, although they and gun dealers agreed to certain restrictions on sales and better training to prevent firearm sales to criminals.
A year after Renne took office in 1986, she signaled her unconventional intentions.
The exclusive Olympic Club leased land from the city for three holes of its golf course. It also limited membership to white men. Renne sued, and the club changed its ways.
The Stakes Get Higher
By the mid-1990s, she was playing for higher stakes, most notably with the city's strike against tobacco companies.
"A lot of people thought we were nuts," recalled Renne, who now represents the city's school district and maintains a private practice.
When the city adopted its 1997 ordinance requiring contractors to provide equal rights to domestic partners, the airline industry and others sued. San Francisco placed the chief assistant city attorney on the case and recruited Stewart -- then a partner at a high-powered San Francisco firm -- as pro bono counsel.
"It was the first time anyone ever made this argument: that when a government entity is acting like a consumer, it is within its right to require nondiscrimination from the companies it wants to do business with," said Geoffrey Kors, who helped craft the ordinance and now is executive director of the gay rights group Equality California.
There was one wrinkle: A federal court ruled in 1999 that because the city held a monopoly with San Francisco International Airport, airlines doing business there had to provide only noneconomic benefits such as bereavement leave and travel perks.
But, swayed by a gay boycott of United Airlines and increasingly aware of the burgeoning gay travel market, airlines offered health coverage and pensions too, as did many Fortune 500 companies.
A 1999 report by the Human Rights Campaign, a national gay rights organization, found that 76% of employers nationwide providing domestic partner benefits were doing so in response to the San Francisco ordinance. Los Angeles, Minneapolis, Seattle and San Mateo, Calif., passed similar laws. And under a California law approved last year, state contractors must offer the benefits beginning in 2007.
Herrera -- who practiced maritime law in San Francisco and served as chief of staff of the U.S. Maritime Administration during the Clinton administration -- has followed in Renne's footsteps.
He has filed a federal lawsuit against city airport contractor Tutor-Saliba Corp., alleging that it padded airport construction bills by more than $300 million -- charges that the company denies. He has teamed up with state Atty. Gen. Bill Lockyer -- his reluctant adversary in the same-sex marriage case -- to file consumer and environmental protection suits.
The city recently became the first to join Planned Parenthood in challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2002. And there was the stance on property tax assessments.
Domestic Partner Issue
Then-Assessor Doris Ward believed it was unfair that gay men and lesbians were suffering steep reassessments on the death of their longtime domestic partners.
Herrera and Stewart interpreted "spouse" in the statute that exempts survivors from reassessment as applying also to gays and lesbians registered as domestic partners, saying it would be unconstitutional if interpreted otherwise.
The state Board of Equalization initially opposed the order. But then Carole Migden -- a lesbian activist and former San Francisco supervisor and assemblywoman -- was elected chairwoman, and the board adopted a rule change that supports San Francisco's take on the law.
Herrera has shown deference to the city's gay and lesbian community. Soon after taking office, he campaigned with Supervisor Tom Ammiano to compel the makers of AIDS drugs to change their advertising, which city officials said showed patients looking unrealistically healthy and did not adequately disclose the drugs' side effects.
The companies declined to meet with Herrera, but he said the ads were changed to the city's liking after an exchange of letters.
But his strongest signal of commitment to gays and lesbians might have come with the hiring of Stewart, 47.
A former president of the Bar Assn. of San Francisco, where she established a mentoring program for at-risk youths, Stewart also is a lesbian activist who years ago campaigned for acceptance and equal treatment for gay and lesbian lawyers in top San Francisco firms.
Stewart and her longtime partner decided not to marry because it would bring Stewart too close to the case. But her good fortune at landing in the center of this battle has not escaped her.
"This case has everything," she said. "It's got real drama and emotion and people, and interesting constitutional issues and jurisprudential issues.... It's the kind of case they put on your law school exam and you think, 'I'll never get one that's that exciting.' "