Law Professors Urge Court to Strike Down Utah’s Same-Sex Marriage Ban

Contact: Susan Gluss,, 510-642-6936


Berkeley, CA-March 4, 2014…Forty family and child welfare law professors filed a friend-of-the-court brief today opposing Utah’s same-sex marriage ban. In the brief, the professors ask the 10th Circuit Court of Appeals to affirm a lower court ruling in Kitchen v. Herbert, which found Utah’s ban on marriage for same-sex couples unconstitutional. The marriage ban substantially undermines the state’s interests in children and child welfare, according to the brief.

The brief—co-authored by faculty members Joan Heifetz Hollinger of UC Berkeley School of Law, Courtney Joslin of UC Davis Law, and Laura Kessler of the Univ. of Utah—seeks to provide the court with a more complete and accurate understanding of the multiple purposes of marriage, and its relationship to procreation and parentage. In addition to Hollinger, Berkeley Law Professors Herma Hill Kay and Melissa Murray are among the 40 signatories, and third-year Berkeley Law students Celia DePentheny O’Kelly and Randal Boyd McDonald provided research assistance.

The law professors reject the state’s contention that the ban is permissible because same-sex couples do not have children who are biologically related to both parents. As stated in the brief, “Utah, like all other states, has never required prospective spouses to agree to procreate, to remain open to procreation, or even to be able to procreate as a condition of marrying.”

Marriage has always served many purposes, not just ones related to procreation and children, the brief argues. The mutual responsibilities and protections of marriage “apply to the married couple and most have nothing to do with children. Excluding same-sex couples from marriage and all its attendant legal protections because they allegedly do not provide a certain kind of parenting, when different-sex couples are not required to have children at all, much less biological children, imposes a colossal burden on same-sex couples.”

Equally important, the authors write, the state’s assertions about “gender-differentiated optimal parenting” are “at odds with the social science consensus demonstrating that the key factors for positive outcomes for children are the quality of the parent-child relationship, and the relationship and resources of the parents, not the parents’ gender or sexual orientation.”

The authors also contend that “[T]here is no logical reason to believe that permitting same-sex couples to marry would have any influence on the marital or procreative decisions of different-sex couples, much less cause these couples to care less about their children, [or] suffer a decline in fertility…. These suppositions, which are central to [the state’s] argument, make sense only if same-sex relationships are so abhorrent as to contaminate the institution of marriage to the point that different-sex couples will shun it.”

In the end, the professors argue, denying marriage to same-sex couples undermines the well-being of children. While the ban does nothing to help children raised by different-sex couples, it inflicts direct and palpable “harms on the children of same-sex couples” by signaling that their families are not as worthy as others and “by denying their families access to hundreds of critical state and federal marital benefits that are conducive to providing stable and secure environments for raising children.”

The law professors are represented by Morrison and Foerster LLP, pro bono.

Contact faculty member Joan Hollinger directly at, 510-642-1419.