On Tuesday, March 26, the justices will hear arguments on whether California’s Proposition 8 ballot initiative, which defined marriage as a union between a man and a woman, violates equal rights under the U.S. Constitution. The case Hollingsworth v. Perry is the culmination of nearly five years of legal battles surrounding the initiative.
On Wednesday, March 27, the Court will hear a constitutional challenge to the 1996 federal Defense of Marriage Act (DOMA), which prohibits the U.S. government from recognizing same-sex marriage. In that case, United States v. Windsor, the Court will determine whether the act wrongly denies married same-sex couples equal benefits under federal law.
Berkeley Law scholars available to comment include:
1) Joan Heifetz Hollinger is a lecturer-in-residence at Berkeley Law. She has co-authored four amicus briefs in as many Prop 8. cases in support of civil marriage for same-sex couples, including the brief on behalf of California family law professors filed in Hollingsworth v. Perry. Hollinger is also a co-author of briefs filed against DOMA, most recently on behalf of family and child welfare law professors in United States v. Windsor. The brief asks the Court to strike down section three of the act, which defines marriage as a union between a man and a woman under federal law.
“DOMA hinders rather than furthers any federal interest in child welfare because its effect is to deny hundreds of important rights and protections to married same-sex parents and, by extension, their children. DOMA does not offer any inducements to heterosexuals to engage in ‘responsible’ procreation or childrearing; its sole effect is to harm and stigmatize married same-sex couples and their children, while leaving opposite-sex couples and their children untouched,” said Hollinger.
2) Melissa Murray is a professor of law and a scholar of family and criminal law who specializes in marriage and its alternatives. Her research has focused on the same-sex marriage debate and Proposition 8. Murray, along with Hollinger and Kay, signed amicus briefs filed by law professors supporting same-sex marriage in Hollingsworth v. Perry and in United States v. Windsor.
“Hollingsworth v. Perry, now pending before the U.S. Supreme Court, could be as significant to civil rights law as Brown v. Board of Education or Roe v. Wade,” said Murray. “It’s no accident that the landmark case evolved in California, the first state to invalidate laws prohibiting interracial marriages. It was also the first state to enact no-fault divorce, while Berkeley was the first city in the U.S. to establish domestic partnerships.”
3) Herma Hill Kay is a law professor and former Berkeley Law dean. Kay is a co-author with Hollinger of the amicus brief on behalf of California family law professors filed in Hollingsworth v. Perry, and is a signatory of the family and child welfare amicus brief in United States v. Windsor. In her analysis, California’s state legislature and courts had found that there was no meaningful difference between committed same-sex and opposite-sex couples before passage of Prop. 8—and had already extended full legal protections to same-sex partners.
Kay, along with Hollinger, also joined an amicus brief arguing that the existing 18,000 marriages by same-sex couples in California would continue to be valid, even if Prop. 8 banned such marriages in the future.
“The cases before the Supreme Court illustrate a very important milestone in our approach to marriage. As Judge Walker found in Perry v. Schwarzenegger, marriage for heterosexual and same-sex couples is a fundamental right, which is great progress,” said Kay.
4) Jesse Choper is a constitutional law professor and expert on the U.S. Supreme Court. He wrote a brief in favor of plaintiffs in the California Supreme Court re: Marriage Cases advising the Court to rule on the basis of constitutional interpretation. The state Court found Prop. 8 unconstitutional in May 2009.
“There is absolutely no distinction in the law’s eyes between same-sex married couples and heterosexual married couples. They have exactly the same rights under California law,” said Choper.
Note: The Supreme Court will post the audiotapes and transcripts of the hearings on the two same-sex marriage cases on its website shortly after arguments are finished. The material should be available by 1 p.m. Tuesday for Prop. 8 and by 2 p.m. Wednesday for DOMA. The Prop. 8 case is scheduled for one-hour of argument; DOMA is scheduled for one hour and fifty minutes.
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