Berkeley Law Experts React to California Supreme Court Ruling on Same-Sex Marriage

Contact: Susan Gluss, UC Berkeley School of Law, 510.642.6936 / 510.705.3366 (cell)

Berkeley, CA—May 15, 2008… A landmark ruling today by the California Supreme Court overturned the state’s ban on gay marriage. The justice’s four to three decision makes California the second state to allow gay and lesbian marriages.

UC Berkeley School of law has a number of constitutional scholars who supported the plaintiffs in this case, including family law experts Joan Hollinger and Herma Hill Kay and Assistant Law Professor Goodwin Liu. The three offered their reactions to the ruling:

Assistant Law Professor Goodwin Liu:

Under California law, domestic partnership provides virtually the same privileges and benefits as marriage. But today the California Supreme Court reminds us that “separate but equal” is not truly equal, because denying gay couples the opportunity to marry unavoidably assigns lower respect and lesser dignity to same-sex relationships.

Sixty years ago, the California Supreme Court was the first in the nation to strike down a law against interracial marriage. Today the court has again taken a leadership role on marriage equality and civil rights. Whether this ruling will influence other state courts, or the federal courts, remains to be seen. But if the history of interracial marriage is any guide, today’s decision will set the stage for further progress toward equal citizenship for gays and lesbians.

Lecturer Joan Hollinger:

The Court explains that the core substantive rights embodied in the right to marry “include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” The opinion then observes that “in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.”

In ruling that California may no longer exclude same sex couples from legal marriage, the Court wisely rejects formal legal distinctions that would relegate same-sex couples and their families to second class status. The Court thereby resoundingly acknowledges that same sex and opposite sex couples who have entered into loving and committed family relationships are equally worthy of respect and legal protection.

Law Professor Herma Hill Kay:

“The significance of this important ruling is not limited to the right to marry an individual of one’s own choice. The Court also held that sexual orientation is “a characteristic that we conclude represents—like gender, race, and religion—a constitutionally suspect basis upon which to impose differential treatment.”

*Assistant Law Professor Goodwin Liu signed a separate amicus brief filed by constitutional law scholars in support of the plaintiffs. Liu is an expert in constitutional law, civil rights, and the Supreme Court.

**Family law experts Joan Hollinger and Herma Hill Kay co-authored one of the amicus briefs supporting civil marriage for gay couples. The brief argued that the California Legislature and courts had already determined that there was no meaningful difference between committed same-sex and opposite-sex couples, and had therefore extended full recognition and legal protections to same-sex partners and their children.

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