Proposition 8 Called Unconstitutional in Brief by Director of Sexuality and Gender Law Clinic

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New York, Feb. 8, 2010—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,” according to a friend-of-the-court brief by a Columbia Law School professor.

“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,” writes Suzanne Goldberg, Director of the Center for Gender and Sexuality Law at Columbia Law School.
 
Goldberg, who also directs the Law School’s Sexuality and Gender Law Clinic, wrote the brief on behalf of the National Gay and Lesbian Task Force Foundation.
 
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.”
 
Testimony in the trial concluded Jan. 27. Chief U.S. District Judge Vaughn Walker, who is presiding over the case without a jury, will schedule closing arguments after receiving final written submissions, due by the end of this month.
 
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