Gender & Sexuality Law Blog

Professor Suzanne Goldberg

Proposition 8 should be struck down because it denies same-sex couples access to the “unique” value” of marriage and “denigrates” domestic partners by not allowing them to marry, Professor Suzanne Goldberg argues in a brief filed for the latest challenge to the California law.

The amicus brief, on behalf of four gay rights and civil rights groups, says the law violates the Equal Protection Clause of the Fourteenth Amendment by restricting same-sex couples to civil unions, which the brief says “replicates the functions—but not the social meaning—of marriage.”

“Proposition 8’s placement of different-sex couples on one side of the marriage line and same-sex couples on the other denies same-sex domestic partners the unique, particular value of marriage and denigrates their worth relative to different-sex married couples,” Goldberg writes.

Goldberg, who is director of the Sexuality and Gender Law Clinic and the Center for Gender & Sexuality Law at Columbia Law School, argues that when a state has sole control over giving out marriage licenses, it cannot limit access merely because tradition has dictated that marriage is between a man and a woman.  Proposition 8’s supporters “intended to exclude same-sex couples from marriage precisely to avoid the message of full and equal inclusion in society – the great promise of equal protection – that would flow from granting lesbian and gay couples non-discriminatory access to marriage,” Goldberg writes.

U.S. District Judge Vaughn Walker struck down Proposition 8 in August as unconstitutional. Supporters appealed Walker’s ruling to the Ninth Circuit Court of Appeals, which is slated to hear arguments Dec. 6. For now, same-sex couples cannot marry in California.

Goldberg, whose co-counsel on the case is California lawyer Susan Popik, of Chapman, Popik & White LLP, wrote the brief on behalf of the National Gay and Lesbian Task Force Foundation, the Human Rights Campaign, the American Humanist Association, and Courage Campaign Institute.

To read the full brief, click here.