Law School Sexuality & Gender Law Experts Criticize Proposition 8 Ruling

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New York, May 26, 2009 —The California Supreme Court’s 6-1 ruling today upholding that state’s Proposition 8 ban on marriage for same-sex couples was condemned by the director of the Sexuality & Gender Law Clinic at Columbia Law School and the director of the Law School's Gender and Sexuality Law Program as an “about-face” that strips away the rights of minorities.
At the same time as the judges upheld the ban, they voted unanimously to leave intact the 18,000 marriages for same-sex couples performed before Prop. 8 took effect.
“While the Court upheld the right of Californians to deny same-sex couples the right to marry, the real loser today is marriage itself,” said Professor Katherine Franke, director of Columbia’s Gender and Sexuality Law Program. “The Court upheld Prop. 8 only after it concluded that the only right at stake in the case was the right to a label—‘marriage’—and so long as same-sex couples get all the same rights as straight couples, it’s no big deal that their relationships won’t be called marriages. In effect, the Court held that marriage isn’t very important.”
Clinic director Professor Suzanne B. Goldberg attacked the broader ruling that Prop. 8 was not an illegal revision of the California Constitution. “After recognizing the equal dignity rights of gay and straight couples just a year ago, the California Supreme Court has now done an about-face in upholding the exclusion of same-sex couples from marriage,” Goldberg said.
The court had struck down the ban on marriage for same-sex couples in May 2008, which led to the placement of Prop. 8 on the ballot in November. It passed with 52 percent of the vote.
“With this decision, the Court confirms that California elections amount to a free-for-all where voters can strip away minority rights,” Goldberg said. 

Franke remarked, “The only way that the Court could uphold Prop. 8 was to minimize the scope and meaning of the ballot initiative. As we know, this is not a minor issue for many, many lesbian and gay couples.”
The Sexuality & Gender Law Clinic had filed an amicus brief for the cases that led to the 2008 ruling. The brief argued that if a state promises to treat all constituents the same, it cannot impose different sets of rules for couples that live within its borders. However, Goldberg said the court has now allowed that to happen.
“Today’s decision subjects the state’s equality guarantee to majority approval, showing the California initiative process to be as bankrupt as the state itself,” Goldberg said. “Now, a state that barely has enough money to pay its bills has bought itself three different relationship statutes to administermarriage for heterosexual couples, marriage for a subset of same-sex couples (but not remarriage, should any of those couples divorce), and domestic partnership for the rest of the same-sex couples in the state.”

For more about today's ruling, please visit the
Gender & Sexuality Law Blog.
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