UC Berkeley News


Former Boalt dean Herma Hill Kay examines same-sex marriage

| 04 March 2004


Herma Hill Kay, an expert in family law and anti-discrimination law
Bonnie Azab Powell photo

For perspective on the historical context of marriage as a legal contract (and insight into where same-sex marriage might fall in that continuum), the campus NewsCenter talked to Herma Hill Kay, the former dean of Berkeley’s Boalt Hall School of Law. Kay, a Boalt faculty member since 1960, has been a pioneer in shaping family law and anti-discrimination law, most notably as the co-author of California’s 1970 no-fault divorce act. She has written extensively for law-review journals on women’s rights, family law, and diversity in legal education. Her article, “Same-Sex Divorce in the Conflict of Laws,” will be published in the March issue of King’s College Law Journal, London.

What do current laws in California and the U.S. have to say about same-sex marriage?
California defines marriage in Section 300 of the Family Code as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” The words “a man and a woman” were inserted by the California Legislature in 1977. Later, in 2000, voters passed Proposition 22, adding Section 308.5 to the code to say that “only marriage between a man and a woman is valid or recognized in California.” Contrary to what opponents of same-sex marriage claim, the people did not define marriage when they passed Proposition 22. The Legislature had done that 23 years earlier.

In 1996, Congress enacted the federal Defense of Marriage Act, which President Clinton signed into law. DOMA deals with how the federal government treats spouses in terms of income-tax, immigration, and Social Security purposes. DOMA has two provisions. The first gives the states permission not to give full faith and credit to same-sex marriages performed in other states. [Kay here refers to the U.S. Constitution’s “full faith and credit” clause, directing states to honor the public acts, records, and judicial proceedings of every other state.] The other says that for purposes of federal law, the definition of a spouse will be [one partner in] a marriage between a man and a woman.

Prior to DOMA, Congress had been willing to let the states define marriage as it relates to these federal programs. Now they’re saying, “For federal purposes we’re not going to look at the state definition, we’re going to have our own definition. If the state has a broader definition of marriage, well, we’re just not going to recognize that.” From my perspective as a family law teacher, this part of DOMA is particularly unfortunate.

So if gay marriages from other states are not considered valid, what about ones performed in the Netherlands, Belgium, and the two Canadian provinces that have legalized same-sex marriage?
DOMA does not apply to marriages created under the laws of foreign countries. Its reach is limited to marriages performed in sister states and U.S. territories, possessions, or Indian tribes. Similarly, Proposition 22 was aimed at marriages performed in Hawaii, or now in Massachusetts, not those authorized by foreign countries. Therefore, technically a California court could recognize a marriage performed in a foreign country.

When Proposition 22 went on the California ballot, a lot of people argued that it was unnecessary because the public-policy exception already existed — for example, states do not have to recognize polygamous marriages that have been legally entered into in other countries, because they are contrary to U.S. law. But in light of what was happening in Hawaii [where the Hawaii Supreme Court ruled in 1993 that same-sex couples should be allowed to marry], the proponents wanted to have something that was more definitive than that. Proposition 22 simply makes plain that California has a local public policy against same-sex marriages performed in other states.

Since voters passed Proposition 22, on what grounds can Mayor Newsom challenge it?
His policy is not a challenge to Proposition 22, it’s a challenge to California Family Code Section 300, which is the provision that defines who is eligible to be married. His argument is “Yes, the statute forbids this, but the statute itself is unconstitutional as a denial of equal protection to same-sex couples under the California constitution.” He’s in effect saying that in order to overcome this unconstitutional statute, he has made it possible for people to get marriage licenses issued.

For the complete text of the NewsCenter’s interview with Herma Hill Kay, visit www.berkeley.edu/news/media/releases/2004/02/27_samesex.shtml.