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Leading Legal Scholars Reject Prop 8 Arguments

Verdict is in: 59 Constitutional and Family Law Professors from 14 California Law Schools Analyze and Reject Prop. 8 Claims

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By: NO on Prop. 8

SACRAMENTO, Calif. - 10/29/2008 - Today the NO on Prop 8 campaign released a rare joint statement signed by 59 distinguished law professors concluding that the Prop. 8 campaign's legal arguments are false, adding their voices to a growing chorus of educators, newspapers and other experts who say the Prop. 8 campaign has been deceptive and misleading.

The list of scholars include Erwin Chemerinsky, the Founding Dean of the University of California School of Law; Kathleen Sullivan, Former Dean of Stanford Law School; and Paul Brest, Dean Emeritus of Stanford Law School.

"We recognize that people of integrity can differ in their views of the meaning of marriage," the scholars write. "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 would do."

The legal scholars conclude:

1. Prop. 8 clearly discriminates against gay men and lesbians.
2. Prop. 8 would have no effect on the tax exemptions of churches.
3. Prop. 8 would have no effect on teaching or the protection of parental rights already provided by state law.

"As teachers of the law we feel an obligation to speak out when claims are made about the law that are simply and clearly false," said Professor Pam Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School.

"The Prop. 8 campaign can't produce a single respected expert to back up any of their preposterous claims," said Rep. Zoe Lofgren (D-CA), a member of the House Judiciary Committee. "Californians deserve to know the facts. I am grateful California's best legal scholars have taken the time to review the facts and the law and to share their conclusions with the public."

Constitutional Law Professors' Statement About Proposition 8

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.

The full text list of the Constitutional Law Professors follows.

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

John M. Adler
Professor of Law
University of San Francisco 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

Kim Buchanan
Assistant Professor
University of Southern California 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

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

Lawrence C. Levine
Professor of Law
Pacific McGeorge School of Law

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

Jenny S. Martinez
Associate Professor of Law and Justin M. Roach, Jr. Faculty Scholar Stanford
Law School

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

Julie Nice
Visiting Professor of Law
University of San Francisco School of Law

Deborah L. Rhode
McFarland Professor of Law
Stanford Law School

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

 

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