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Goodwin Liu on a Federal Constitutional Right to Same-Sex Marriage



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Given what I’ve documented about him so far (see here, here, and here), it should be no surprise that Berkeley law professor and Ninth Circuit nominee Goodwin Liu was one of 17 professors of constitutional law in California who in 2007 submitted an amicus brief to the California supreme court arguing that California’s definition of marriage as between a man and a woman violated the equal-protection guarantees of the state constitution. 

It’s worth highlighting that the mode of reasoning in that brief clearly dictates that Liu and the other amici also believe that California’s definition of marriage violates the equal-protection guarantee of the federal Constitution:  As the brief puts it (p. 3), “amici rely upon their expertise in federal constitutional law to illustrate their arguments because [the California supreme court’s] analytic methodology for interpreting the Constitution so often parallels analysis by courts construing the federal Constitution.”  In other words, the brief argues that because California’s definition of marriage violates the equal-protection guarantee of the federal Constitution, it follows that it violates the state Constitution.

Given that the anti-Prop 8 case will soon be on appeal to the Ninth Circuit, Liu’s position on this question is hardly academic.

Libertarians and others who imagine that the resolution to the whole same-sex marriage battle is to get the government out of the marriage business altogether will also find of interest that Liu’s brief takes the position that it would be unconstitutional for California to abolish the civil institution of marriage or to rebrand it with a new name (see pp. 20-22).


Tags: Whelan


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