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Herma Hill Kay Herma Hill Kay, Boalt Hall's first female dean. (BAP photos)

Former law dean Herma Hill Kay examines same-sex marriage

– Same-sex marriage promises to be one of the defining - and dividing - issues of 2004. Following the Massachusetts Supreme Judicial Court's ruling that barring same-sex marriage violates the state's constitution, the Massachusetts legislature has been deadlocked over a proposed amendment banning it. San Francisco Mayor Gavin Newsom's decision to issue more than 3,300 marriage licenses to same-sex couples since February 12 has prodded President George W. Bush to push for an amendment to the U.S. Constitution restricting marriage (and its federal legal benefits) to unions of a man and a woman.

Statistics from Census 2000

• The U.S. has 594,000 same-sex unmarried-partner households, compared with 4.9 million households of unmarried opposite sex couples

• Nationally, 33% of female same-sex households include biological children under 18; 22% of male same-sex households do

• California, the largest state, has the most same-sex households: 92,000

• California also has the highest percentage of same-sex unmarried partners among its coupled (married and unmarried) households, with 1.4%, followed by Massachusetts, Vermont, and New York, with 1.3%

• San Francisco, Oakland, and Berkeley are Nos. 1, 4, and 5 among U.S. cities with the most same-sex households

For perspective on the historical context of marriage as a legal contract and where same-sex marriage might fall in that continuum, the NewsCenter talked to Herma Hill Kay, the former dean of UC 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. The author of "Text, Cases, and Materials on Sex-Based Discrimination" with Kenneth M. Davidson and Ruth Bader Ginsburg (1974; 5th ed., 2002, with Martha S. West), she has written extensively for law-review journals on women's rights, family law, and diversity in legal education. Her upcoming article, "Same-Sex Divorce in the Conflict of Laws," will be published in the March issue of King's College Law Journal, London.

We're hearing a lot about the "sacred institution of marriage." But hasn't marriage's definition, both social and legal, undergone a significant metamorphosis in this country just in the last century or so?

Well, for example, common-law marriage used to be accepted. But that wasn't a different definition of marriage. It was just another way for a man and a woman to enter into marriage when a clergyman or civil servant was unavailable, which was useful particularly for people living in isolated areas. You agreed to be married simply by using words of the present tense - "we are now married," not "we will be married" - and you proved it simply by holding yourselves out as being a married couple to the community. Common-law marriage was as valid as any other; you needed a divorce to dissolve one.

Common-law marriage fell into disrepute precisely because it depended on word of mouth and was hard to prove if one of the parties died. California abolished common-law marriages in 1895; I think there are now only about a dozen states that permit them.

Would a couple's common-law marriage, from a state that still permitted them, also be valid in California?

Yes, if a common-law marriage is valid where it is entered into, it will normally be recognized in other states because of the choice-of-law rule that applies the law of the place of performance to determine the validity of a marriage.

California has a provision like this, Family Code Section 308, which says that a marriage that is valid where it is performed is valid in California. It's been in the California family code since the mid-1800s.

That wasn't true for interracial marriages, though, was it? States didn't have to honor interracial marriages performed in other states until 1967.

'The Supreme Court's attitude is changing about the question of the rights that homosexuals and lesbians have . but I don't think I see five votes in favor of gay marriage.'
-Herma Hill Kay,
UC Berkeley law professor

Right. By the late 1920s, most states had enacted statutes that prohibited miscegenation, as interracial unions were called. The ones in the South almost all prohibited marriages between Caucasians and African Americans; in California, Caucasians also couldn't marry "Mongolians or members of the Malay race." These statutes created a local public policy against interracial marriages, and allowed states to claim a public-policy exception from the normal choice of law favoring recognition.

The California Supreme Court invalidated the California miscegenation statute in 1948. The statutes were struck down because they were unconstitutional, usually based on either the due process or the equal protection clause. Then in 1967, the U.S. Supreme Court ruled in Loving v. Virginia that no state could prohibit marriage between persons of different races. The couple in that case had been married in the District of Columbia and were arrested and jailed for trying to live together as man and wife in their home state, Virginia.

In Loving, the Supreme Court adhered to a strict-scrutiny approach in interpreting the equal protection clause, as it does for cases involving race. [Laws that target minority groups, known as "suspect" classes, are in principle subject to especially rigorous review, or "strict scrutiny," to ensure fair treatment from the majority.] The Court said that the state could not impinge on the fundamental freedom to marry. It's that's "fundamental freedom" language that's being relied on in the same-sex marriage cases in San Francisco, the argument being that the fundamental right to marry ought to apply to people of the same sex just as it applies to people of different races.

What do current laws in California and the United States 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.

Text of the 1996 federal Defense of Marriage Act (DOMA)

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

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. [This 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 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, Ontario and British Columbia, 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.

Given that the voters passed Proposition 22, on what legal grounds can 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.

'When we talk about civil marriage and religious marriage in the United States, we're really only talking about the way in which the marriage is celebrated ... [R]egardless of where the ceremony occurs, legally marriage is always defined as a civil contract.'
-Herma Hill Kay

Newsom's state constitutional argument is a strong one. It is the same one that convinced the Massachusetts Supreme Judicial Court in applying the similar provisions of the Massachusetts State Constitution, so I think it has a decent chance at the California Supreme Court level, considering California has a higher standard of strict scrutiny for sex discrimination than Massachusetts does.

So although statutes were added, the California constitution was never amended to prohibit same-sex marriage. Does it prohibit discrimination on the basis of sexual orientation?

Not in so many words. But the California Supreme Court interpreted the state constitution's equal protection clause to apply to employment discrimination against homosexuals in a 1979 case called Gay Law Students Association v. Pacific Telephone and Telegraph Co. It also interpreted the equal protection clause in a 1971 case called Sail'er Inn, Inc. v. Kirby, involving gender discrimination, as requiring "strict scrutiny." The U.S. Supreme Court limits strict scrutiny to cases involving race, national origin, and fundamental rights such as marriage, as in the Loving miscegenation case. But under the California constitution, since gender is entitled to that highest level of scrutiny, you could make an argument that a challenge to laws prohibiting same-sex marriage should also be judged according to strict scrutiny.

At what point in U.S. history did jurisdiction over marriage pass from the church to the government?

Draft text of bill to legalize same-sex marriage across Canada

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.

2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.

Marriage has never been administered by the church in the United States. In England, the ecclesiastical courts - which we never had - controlled marriage and divorce up until 1857, when the civil divorce bill was passed. In the United States we started out having legislative private divorces, but very early on, after the Revolutionary War, the jurisdiction was conferred to the state legislatures and the courts to set the grounds for and make the definitions of divorce.

When we talk about civil marriage and religious marriage in the United States, we're really only talking about the way in which the marriage is celebrated. In a religious marriage, it is celebrated at the church. But regardless of where the ceremony occurs, legally marriage is always defined as a civil contract.

But although the government has always administered that contract, granting marriage licenses as well as divorces - even ones that run contrary to religious beliefs, such as divorce in the Catholic Church - many people in this country still believe that marriage is governed by religion.

That's right. Many religions view marriage as a sacrament. But that doesn't control what the civil law permits. If you want to look at a place where there's a real conflict between religious law and other law, look at Israel. Israel has only religious marriage law; it doesn't have any such thing as civil marriage. So if you get married outside of the religion, there's no way you can have that marriage recognized.

I read a letter to the editor written by an opponent of same-sex marriage, who said "Look, if I have a piece of gold, and the government suddenly decides that sandstone is worth the same as gold, then my gold has become valueless. It's the same with marriage." And I was thinking, "Well, if you have a diamond and we discover another diamond mine, the value of your diamond will decrease, too - but that doesn't mean you don't have the same diamond that you had before."

Some critics of same-sex marriage see homosexuality as a "lifestyle choice," not in the same class as race when it comes to discrimination. If science tells us otherwise, will that bolster gays' and lesbians' legal standing?

I think it goes deeper than that. As the letters to the editor show, there are people who think homosexuality is sinful and immoral, and it doesn't matter whether you can choose it or if it's ingrained - you're not supposed to give in to it. That viewpoint also came up with interracial marriage, but that was a complicated situation because a central purpose of the anti-miscegenation laws was about preserving white supremacy.

I don't think the argument against same-sex marriage is so much a rejection of the common humanity of gays and lesbians, but rather a religious sense that this is something that you can resist - that there's some kind of moral culpability in giving in to homosexuality, that it's not natural.

Does the U.S. Supreme Court's ruling last year in the case of Lawrence v. Texas, which declared that consensual sexual acts between same-sex adults could not be criminalized, indicate that the Court may be willing to rule on legalizing same-sex marriage?

Lawrence was about the due process clause - the right to privacy - and the Court said in effect that no state can prohibit this kind of conduct in private. I think that signals that the Court's attitude is changing about the question of the rights that homosexuals and lesbians have.

UC Berkeley students talk about same-sex marriage

If you look at segregation in public schools - everything that came before Brown vs. the Board of Education - there was a real turmoil and revolution until the law was settled by the Supreme Court. The abortion cases would be another example where again the U.S. Supreme Court stepped in at a time where various reform statutes were being enacted in the states. You can imagine what would have happened if there hadn't been a Supreme Court decision, and all this was happening on a state-by-state basis.

But with this Supreme Court, I don't think I see five votes in favor of gay marriage.

What will happen if President Bush succeeds in getting a constitutional amendment prohibiting same-sex marriage?

Last night I was thinking about the question of whether some parts of the Constitution are more "constitutional" than other parts. I was thinking about Prohibition, a movement that was also driven by moral and religious proponents, who said we've got to stop selling alcohol. And after a period when it became clear that that didn't seem to be working - it just allowed organized crime to become more powerful - they repealed Prohibition with another amendment.

So if President Bush succeeds in getting a constitutional amendment, that will be Prohibition II. And if it became obvious that this is really harmful to the same-sex families that I think will continue to be formed, and the children who will continue to grow up in those families, maybe we would see repeal of Prohibition II. If we do have a constitutional amendment, then I think we're in for some very troubled times.