Many law students study and discuss the legal issues surrounding same-sex marriage. Few have had their lives as profoundly shaped by those issues as Berkeley Law 3L Spencer Perry.
Two of his parents, Kris Perry and Sandy Stier, were plaintiffs in the federal case that overturned California’s Proposition 8 as unconstitutional. The 2008 state ballot measure, which passed with 52% of the vote, added a new section to the state Constitution providing that “Only marriage between a man and a woman is valid or recognized in California.”
Perry’s parents and a male gay couple argued that Prop. 8 violated their 14th Amendment right to equal protection of the law. A federal district court held that Prop. 8 violated the Constitution, the U.S. Ninth Circuit Court of Appeals affirmed, and the U.S. Supreme Court ruled that proponents of the measure lacked standing to appeal the decision. The Court did not address the merits of the case.
Before law school, Perry earned degrees in economics, computer science, and public policy at the George Washington University, where he took on leadership roles in the school’s gay-straight alliance and chaired the Board of Directors of the university’s LGBTQ graduate health policy and practice program. After college, he served as then-Senator Kamala Harris’s personal assistant and legislative officer, and managed a division of her presidential campaign’s operations.
At Berkeley Law, Perry has helped lead the school’s international law journal, criminal law journal, international law society, and pro bono programs serving survivors of domestic violence. After graduating this May and taking the California Bar Exam, Perry will begin a placement in the U.S. Department of Justice Honors Program.
Below, he describes the implications of the newly passed Respect for Marriage Act, and how his family’s experience with the marriage equality issue fueled both his interest in Berkeley Law and career aspirations.
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I skipped school to go to court. I took BART to the San Francisco federal building and took a pew alongside my brothers and grandmother, each of us nervous and eager. We watched my parents testify in their suit to overturn Proposition 8, California’s ban on same-sex marriage.
There I saw firsthand how passionate, principled attorneys advance justice for disenfranchised communities. I committed my career to that goal. Fourteen years later, I am leaving Berkeley Law rededicated to that mission and motivated by the passage of the Respect for Marriage Act.
Overturning Prop. 8
Californians passed Prop. 8 in 2008, punctuating a decades-long crusade to strip LGBTQ persons of fundamental rights. Within weeks, the state reimbursed my parents’ marriage certificate filing fees and sent notice that their marriage was “invalid.”
Prop. 8 affirmed homophobia and emboldened bigotry. Discrimination against LGBTQ parents and their children is commonplace; navigating subtle prejudice, hate speech, and violence is routine for the community. But discrimination’s tenor intensifies when a government denies a fundamental civil right to a marginalized group. After Prop. 8, LGBTQ Californians worried for their safety and prepared their families for crisis. Then, they fought back.
My parents joined a coalition mounting a suit to overturn Prop. 8 as an unconstitutional violation of federal due process, equal protection, and privacy rights. Their case, Hollingsworth v. Perry, was tried in the Northern District of California. My brothers and I watched expert witnesses for the plaintiffs pierce stereotypes, illustrate the dignity deprived in denying marriage, and detail the protections marriage affords LGBTQ couples and their families. We listened to plaintiffs, including my parents, testify to the lifelong effects of homophobia typified by Prop. 8.
We also watched witnesses for the defense parrot the same limp rhetoric that bogged news outlets before the election. They asserted that same-sex marriage was an amoral danger to children and faith without citation or method. In cross-examination, defense witnesses were uniformly discredited and, on occasion, outmaneuvered into supporting the plaintiffs. At bottom, there was no defense for hate.
The District Court overturned Prop. 8 as unconstitutional and its decision was appealed to the Supreme Court. At oral argument, Justice Scalia raised the same warped issues settled in the record, pondering if children were harmed by granting same-sex couples equal access to a fundamental right. But those coded questions were again outshined by an overwhelming weight of evidence and zealous advocacy.
In June 2013, one month after my twin brother and I graduated from Albany High School, the Supreme Court let the District Court decision stand, effectively restoring the right to marry to thousands of same-sex couples in California and setting the stage to recognize rights nationwide in Obergefell v. Hodges two years later.
I walked down the Supreme Court steps holding hands with my mothers to join choruses of exuberant families. I was energized by the vision of equality hinted at by the decision and determined to join the ranks of the attorneys who gave the movement agency in court. After a career in Congress, I came to Berkeley Law still driven by that goal.
The Respect for Marriage Act
The Court made substantial progress towards full enfranchisement for LGBTQ Americans in the decade since Hollingsworth v. Perry. While Congress refused to act, United States v. Windsor, Obergefell, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC showed that LGBTQ rights could be heard and affirmed in federal courts.
But Dobbs v. Jackson Women’s Health Organization arrested momentum. Justice Thomas’s concurrence expressly undermined Obergefell and alerted Americans to same-sex marriage’s vulnerability under the Court’s new composition.
In a rare moment of bipartisanship, a coalition of advocates and congressional legislators acted to protect LGBTQ Americans’ fundamental right to marry. Congress sent the Respect for Marriage Act to the President’s desk in early December 2022.
The bill would require the federal government, states, and U.S. territories to recognize same-sex and interracial marriages. But like any piece of civil rights legislation, the Respect for Marriage Act compromised key issues to overcome political barriers to passage. Its remaining protections fall short of Obergefell’s nationwide guarantee or the pending EQUALITY Act’s broader enfranchisement provisions.
Specifically, the Respect for Marriage Act would permit states to bar same-sex couples from marrying in-state (a proposal pending in the Iowa statehouse) and permit wedding-related businesses to refuse services to same-sex couples for religious reasons (an issue pending before the Court in 303 Creative LLC v. Elenis).
But progress is worth celebrating; marking victories in the LGBTQ civil rights movement honors the struggle and motivates us to continue the fight. Last winter, I joined my family and dozens like it on the South Lawn to support the President as he signed the Respect for Marriage Act into law. We watched from the portico steps as he penned his signature before a silent, joyful crowd, forever safeguarding a fundamental civil right for LGBTQ Americans.
My mother Kris told the District Court that “[i]f Prop. 8 were undone and kids like me growing up in Bakersfield right now could never know what this felt like, then . . . their entire lives would be on a higher arc. They would have a sense of themselves that would improve the quality of their entire life.”
The Respect for Marriage Act bends the arcs of the 20 million LGBTQ Americans higher and demands that we recommit to lasting, meaningful progress. I will leave Berkeley Law soon with the skills to emulate the attorneys that championed my family’s cause. I leave rededicated to advancing the causes of vulnerable peoples and eager to help people like my parents reach their highest arc.