Constitutional Law Professors’ Statement About Proposition 8

A lot of this information is similar to what Prof Brownstein sent me and I posted earlier. I post this letter for its effect, its clarity, and to show that FIFTY-NINE respected legal scholars (folks who probably know the law and how it works pretty dang well) from accredited California law schools signed on.

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Proposition 8, on the ballot this November, proposes a constitutional amendment that would
eliminate the right to marry that same-sex couples in California currently possess. We recognize
that people of integrity can differ in their views of the meaning of marriage. But people who want to take the right to marry away from same-sex couples should not rely on misleading claims about the current state of the law or about what Proposition 8 will do. As professors who teach and write about constitutional law, family law, and related subjects, we emphasize the following basic points.

First, Proposition 8 would change existing California law and would require the state to
discriminate against gay men and lesbians. Proposition 8 would forbid government officials from
according gay men and lesbians a fundamental right they now enjoy and that all other adults in
California will continue to enjoy: the right to marry a person of their choice. Just as California’s
long ago-repudiated ban on interracial marriage constituted racial discrimination, so too, a ban on same-sex marriage would constitute discrimination on the basis of sexual orientation. The ability of same-sex couples to enter into registered domestic partnerships does not eliminate that discrimination. Thus, the claim made by some of Proposition 8’s supporters that the amendment does not discriminate against gay men and lesbians is simply false.

Second, the claim that Proposition 8 is necessary to protect the tax exemptions of churches
that refuse to solemnize or recognize marriages between same-sex couples is also false. As the
Supreme Court of California made clear in its decision in the Marriage Cases, “affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” 183 P.2d. 384, 451-52 (2008). That protection for religious views is already written into the California Constitution. Article I, section 4 guarantees “[f]ree exercise and enjoyment of religion without discrimination or preference,” and that is true even if a religion forbids conduct that the state permits. The First Amendment to the United States Constitution also already protects a religion’s decisions about whether to solemnize and recognize particular marriages. So, for example, a religion is free to treat only marriages between members of its faith as valid – or even to excommunicate members who marry outside the faith – even though the state permits marriages between individuals regardless of their religious identity and cannot punish individuals’ failure to follow religious commands. The same protections clearly apply in the case of same-sex marriages.

No church will be required to perform or to recognize such marriages. No church’s tax-exempt
status will be affected by its decisions about whether to solemnize marriages between same-sex
couples. Current law affects only the civil institution of marriage.

Third, the claim that Proposition 8 is necessary to prevent public schools from teaching
issues relating to marriage by same-sex couples to children whose parents oppose that instruction is false. Existing California law already provides parents with an absolute right to review all materials provided as part of a school’s comprehensive sexual health education program and to have their children excused from participation. Cal. Educ. Code § 51240; see also Citizens for Parental Rights v. San Mateo County Bd. of Educ., 124 Cal. Rptr. 68, 80-82 (Cal. Ct. App. 1st App. Dist. 1975) (discussing the prior version of this longstanding policy). Nothing about Proposition 8 will change this rule, and Proposition 8 adds nothing to the protection of parental rights already provided by law.

Kathryn Abrams
Herma Hill Kay Distinguished Professor of
Law
UC-Berkeley School of Law

Scott Altman
Vice Dean and Virginia S. and Fred H. Bice
Professor of Law
University of Southern California Gould
School of Law

Diane Marie Amann
Professor of Law
University of California, Davis School of Law

Vikram Amar
Associate Dean for Academic Affairs and
Professor of Law
University of California, Davis, School of Law

Angelo N. Ancheta
Assistant Professor of Law
Santa Clara University School of Law

R. Richard Banks
Jackson Eli Reynolds Professor of Law
Stanford Law School

Ash Bhagwat
Professor of Law
University of California, Hastings College of the Law

Grace Ganz Blumberg
Professor of Law
UCLA School of Law

Paul Brest
Dean Emeritus
Stanford Law School

Rebecca Brown
Newton Professor of Constitutional Law
USC Gould School of Law

Alan Brownstein
Professor of Law
Boochever and Bird Chair for the Study and
Teaching of Freedom and Equality
UC Davis School of Law

Kim Buchanan
Assistant Professor
University of Southern California Gould
School of Law
Patricia A. Cain
Inez Mabie Distinguished Professor of Law
Santa Clara University

Erwin Chemerinsky
Founding Dean
University of California, Irvine School of Law

Eric C. Christiansen
Associate Professor of Law
Academic Co-Director, Honors Lawyering Program
Co-Director, GGU-Paris Nanterre
Comparative Law Program
Golden Gate University School of Law

William Cohen
C. Wendell and Edith M. Carlsmith Professor, Emeritus
Stanford Law School

Jan C. Costello
Professor of Law
Loyola Law School - Loyola Marymount University

David B. Cruz
Professor of Law
University of Southern California Gould School of Law

Mary L. Dudziak
Judge Edward J. and Ruey L. Guirado
Professor of Law, History and Political Science
University of Southern California Law School

David L. Faigman
John F. Digardi Distinguished Professor of Law
University of California, Hastings College of the Law

Deborah L. Forman
Professor of Law
J. Allan Cook & Mary Schalling Cook Children's Law Scholar
Whittier Law School

Philip Frickey
Alexander F. and May T. Morrison Professor of Law
UC Berkeley School of Law

Thomas C. Grey
Nelson Bowman Sweitzer and Marie B.
Sweitzer Professor of Law, Emeritus
Stanford Law School

Pratheepan Gulasekaram
Assistant Professor
Santa Clara University School of Law

Elizabeth L. Hillman
Professor of Law
University of California Hastings College of Law

Joan Heifetz Hollinger
Professor and Lecturer-in-Residence in Family Law
University of California, Berkeley

Marina Hsieh
Assistant Dean for Academic & Professional Development
Santa Clara University Law School

Leslie Gielow Jacobs
Director, Capital Center for Government Law
& Policy and Professor of Law
Pacific McGeorge School of Law

Courtney G. Joslin
Acting Professor of Law
UC Davis School of Law, King Hall

Pamela S. Karlan
Kenneth and Harle Montgomery Professor of
Public Interest Law
Stanford Law School

Kenneth L. Karst
David G. Price and Dallas P. Price Professor of Law Emeritus
UCLA School of Law

Herma Hill Kay
Barbara Nachtrieb Armstrong Professor of Law
University of California, Berkeley

Ellen S. Kreitzberg
Professor of Law
Santa Clara University School of Law

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law

Carlton F.W. Larson
Acting Professor of Law
UC Davis School of Law

Lawrence Lessig
C. Wendell and Edith M. Carlsmith Professor of Law
Stanford Law School

Goodwin Liu
Associate Dean and Professor of Law
UC Berkeley School of Law

Jean C. Love
John A. and Elizabeth H. Sutro Professor of Law
Santa Clara University School of Law

Maya Manian
Associate Professor
University of San Francisco School of Law

Lawrence C. Marshall
Associate Dean for Public Service and
Clinical Education & David & Stephanie
Mills Director of Clinical Education
Stanford Law School

John E.B. Myers
Distinguished Professor and Scholar
University of the Pacific, McGeorge School of Law

Camille Gear Rich
Assistant Professor of Law
USC Gould School of Law

Margaret M. Russell
Professor
Santa Clara University School of Law

Jane S. Schacter
William Nelson Cromwell Professor of Law
Stanford Law School

Darien Shanske
Associate Professor
University of California Hastings College of the Law
John Cary Sims
Professor of Law
Pacific McGeorge School of Law

Edward Steinman
Professor of Law
Santa Clara University School of Law

Kathleen M. Sullivan
Stanley Morrison Professor of Law and
Former Dean
Stanford Law School

Jonathan D. Varat
Professor of Law
University of California, Los Angeles School of Law

Michael S. Wald
Jackson Eli Reynolds Professor of Law, Emeritus
Stanford Law School

Kelly Weisberg
Professor of Law
University of California, Hastings College of the Law

Lois A. Weithorn
Professor of Law
University of California, Hastings College of the Law
University of California

Stephanie M. Wildman
Professor of Law and Director, Center for
Social Justice and Public Service
Santa Clara University School of Law

Michael Zamperini
Professor of Law
Golden Gate University School of Law
Titles and Institutional Affiliations Are Included Only for Purposes of Identification