Suzanne Goldberg Files Amicus Brief in Prop 8 Case

Posted on February 9th, 2010 by Katherine Franke

Perry Amicus p1Suzanne Goldberg, Director of Columbia Law School’s Sexuality & Gender Law Clinic and the Center for Gender & Sexuality Law filed a friend of the court brief this week in Perry v. Schwarzenegger on behalf of the National Gay and Lesbian Task Force Foundation.  She argued that California’s Proposition 8 is unconstitutional because it violates the rights of lesbian and gay couples seeking to access the “unique social value of marriage.”

“By preserving marriage for heterosexuals, while limiting gay and lesbian couples to a status that accords the same benefits via a different name, Proposition 8 reinforces an impermissible message of difference and unequal worth between gay and non-gay people in California.”

The brief is for a federal trial court case that seeks to overturn Proposition 8, a California constitutional amendment that defines marriage as between a man and woman. The proposition overturned a 2008 California Supreme Court decision that allowed marriage for same-sex couples.

“Because the state has a monopoly on access to the legal status of marriage, and thus to marriage’s unique social value, it may not constitutionally allocate that access differentially among similarly situated couples,” the brief argues, noting that Proposition 8 does just that.

In turn, Goldberg writes, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment by denying that access and by effectively deeming “the worth” of a same-sex couple’s relationship is less than that of a different-sex couple.

“Proposition 8 inescapably and impermissibly denigrates same-sex couples by denying them the right to marry and restricting them instead to a separate legal status—domestic partnership—which replicates the functions—but not the social meaning—of marriage,” the brief contends.

Even though California’s domestic partnership law provides “valuable benefits” to same-sex couples, it still falls short of the benefits and value of marriage. The Constitution does not have a “virtually Equal Protection Clause,” according to the brief and by “providing different-sex couples access to marriage and withholding marriage from same-sex couples, Proposition 8 directly contravenes this equal protection guarantee.”


  1. Gender & Sexuality Law Blog » Blog Archive » Suzanne Goldberg …: “By preserving marriage for heterosexuals, whil…

  2. Homosexual couples and heterosexual couples are not “similarly situated”. Heterosexual couples are the only couples who have the biological ability to procreate with each other. Homosexuals have the same marriage rights that heterosexuals have– that is to marry a person of the opposite sex who also wants to marry provided that the other person is not a)already married b) not related c) over the age of 18.

    Take a look at the provisos. The right to marry who you want is not unlimited. What gay couples are arguing, in truth, is not that they should be treated the same because the law knows no distinction between homosexuals and heterosexuals when it comes to marriage. No one will tell a gay man that he cannot marry a woman, nor, indeed will anyone even ask about his sexual preference. (And yes, gays do marry persons of the opposite sex for a variety of reasons). What they are asking for is a special recognition and affirmation of their particular desires. They are not really asserting an equal right to be married. They already have that. What they are asserting is a right to marry whoever they want. The problem is that if that right is extended to them, what will happen to the other limitations? Will brother and sister, father and daughter be allowed to marry? No this is not a stupid question. One, one can find historical instances where just such marriages have been allowed and two, Polygamists are just waiting for the decision because it gives them a chance to overrule Reynolds v. United States which found laws limiting marriage to just one man and one woman constitutional even in light of a religious claim that men were supposed to have as many wives as they could support. If two people who are “really in love” and who see themselves as being “just like” ordinary heterosexual couples are entitled to marry each other, what is the legal argument against polygamy? What is the legal argument against incest? ARen’t those then also just cultural constructs that society does not have the right to impose? Because this case is proceeding on the basis of overturning a state law, we cannot fall back on the argument that the people have the right to decide what marriages will be allowed and which won’t because we have just said that any group of people who love each other should be allowed to have the state’s imprimatur on their relationship, despite a clear vote against it. Or perhaps that is the real agenda, to destroy marriage as an institution by making it basically meaningless. Because that is where it will go when marriage is allowed to any group that wants to be married. Think this is needless alarmism? Here’s a good legal challenge– if a man has 4 wives who gets his pension? Will anyone be able to afford health care benefits for the families that result?

    What is at issue in the Proposition 8 case is the right of the people to decide who can and cannot have the legal benefit of marriage. Suzanne Goldberg’s argument is that the people do not have the right to decide. Once you have crossed that rubicon, how do you legally argue that the other limitations on the right to marry can remain in effect?

  3. Suzanne Goldberg Files Amicus Brief in Prop 8 Case

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