Law Professors Offer Expert Analysis of California Supreme Court Marriage Case

Law Professors Offer Expert Analysis of California Supreme Court Marriage Case

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New York, February 18, 2009 -- In just two weeks (March 5), the California Supreme Court will hear oral arguments challenging the constitutionality of Proposition 8, the statewide ballot initiative that was passed by a majority of California voters in November 2008. (Strauss v. Horton, S168047; Tyler v. State of California, S168066; City and County of San Francisco v. Horton, S168078.)

Prop. 8 would overturn the court's 4-3 ruling that on May 15, 2008, declared same-sex couples had the right to marry under the California Constitution on the grounds of privacy and equal protection. Backers of the measure made the court a focus of their campaign, accusing "activist judges" of thwarting the will of voters who had approved a similar measure as an initiative statute in 2000.
Leading gender and sexuality legal expert Professor Suzanne Goldberg
of Columbia Law School is available to offer incisive analysis and commentary about the legal challenge, as well as provide background on the arguments to be made and debated in this landmark case.

Goldberg co-directs the Law School's Sexuality and Gender Law Program and Clinic, and co-wrote, along with students in the Clinic, an amicus curiae brief in the case on behalf of the National Gay & Lesbian Task Force. After the California Supreme Court struck down the state's unconstitutional "separate but equal" scheme of marriage and domestic partnerships, Goldberg noted that "… by labeling gays and lesbians as 'outsiders' by refusing them access to marriage, the State was in effect denying same-sex couples the dignity and respect equal to that accorded other officially recognized families."

Also available to offer expert legal perspective on this case is Goldberg's colleague and Program co-director, Professor Katherine Franke, who creates a forum for debate on issues related to gender and sexuality law through an engaging blog.

Select publications by Goldberg include:

Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication (forthcoming in Columbia Law Review, December 2006)

A Historical Guide to the Future of Marriage for Same-Sex Couples, 15 Columbia Journal of Gender and the Law 249 (2006)

Lawrence & The Road from Liberation to Equality, 46 South Texas Law Review 309 (2004) (symposium).

Morals-Based Justifications for Lawmaking Before and After Lawrence v. Texas , 88 Minnesota Law Review 101 (2004) (winner of the Dukeminier Award for the best sexual orientation law review articles of 2004)

Equality without Tiers, 77 Southern California Law Review 101 (2004) (winner of the 2003 Association of American Law Schools Outstanding Scholarly Paper Award)

Thinking about Feminism, Social Justice, and the Place of Feminist Law Journals: A Letter to the Editors, 12 Columbia Journal of Gender and Law 582 (2003).

On Making Anti-Essentialist Arguments in Court, 81 University of Oregon Law Review 629 (2002).

STRANGERS TO THE LAW: GAY PEOPLE ON TRIAL, University of Michigan Press (1998) (co-author).

Background on Proposition 8, Prepared by Judicial Council of California

California voters approved Proposition 8, a state ballot initiative, at the November 4, 2008, statewide election. Proposition 8 added a new section to the state Constitution which provides that "Only marriage between a man and a woman is valid or recognized in California." The day after the election, three lawsuits challenging Prop. 8 were filed directly in the California Supreme Court.

On November 19, 2008, the Supreme Court agreed to hear those cases. The court directed the parties to brief and argue the following issues: (1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

In the order accepting the cases for review, the Supreme Court also denied a request to stay the operation of Proposition 8 pending the court's resolution of the cases, granted the motion of the official proponents of Proposition 8 to intervene in the action, and established an expedited briefing schedule. Briefing in the Supreme Court was completed on January 21, 2009. The court will issue a written opinion in the cases within 90 days of oral argument.


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