Experts Debate Same-Sex Marriage
USC Gould School of Law
By Jason Finkelstein
September 19, 2008

CA residents will vote on the issue Nov. 4

In November, voters will decide whether to approve Proposition 8, which would amend the California Constitution to ban same-sex marriage.

On Sept. 16, USC Law students got a first-hand look at the issue.

More than 50 students attended an hour long debate on Proposition 8, between Doug NeJaime of University of California, Los Angeles, School of Law and Jennifer Roback Morse, formerly a professor of economics at Yale University and George Mason University. The event was sponsored by USC Law's chapter of the Federalist Society.

“I thought it was extremely well-organized and thought out,” said Professor Matthew Spitzer, who teaches administrative law and regulatory policy and is the faculty advisor to the Federalist Society. “When student interest is this high in debates, it speaks very well to the intellectual curiosity of our student body.”

NeJaime presented first, arguing that a ban on same-sex marriage is wrong for constitutional, normative, and administrative reasons. He cited the fact that there are already 90,000 same-sex couples raising 70,000 children in California, and he said marriage is a way of formalizing those relationships the same way other families can.

NeJaime’s case also drew a parallel to the 1948 California Supreme Court decision that overturned a ban on interracial marriage.

“We don’t use our Constitution to single out a class of individuals for unequal treatment,” NeJaime said.

Roback Morse argued that if same-sex marriage were to continue, marriage and parenting would become gender-neutral, sending the message that gender and genetic connections no longer matter when raising a child.

She explained that both mother and father play important roles in the family, citing evidence that when children are raised without fathers, girls are at an elevated risk for teen pregnancy and boys are more likely to commit crimes.

“The millions of people that vote for Proposition 8 are not condemning homosexuals, they are supporting children,” Roback Morse said.

After their presentations, each participant gave a five-minute rebuttal and then answered questions from the audience.

In 2000, the Defense of Marriage Act, also known as Proposition 22, called for a ban on same-sex marriage. The measure was passed by about 60 percent of state voters but was overturned when the California Supreme Court declared it unconstitutional last May. That set the stage for the proposed constitutional amendment.

The Federalist Society for Law and Public Policy Studies is a group of social conservatives, libertarians, and so-called deficit hawks interested in the current state of the legal order. Its key beliefs are that the state’s main function is to preserve freedom, that the separation of powers is vital to the Constitution, and that the judiciary branch should interpret — not create — the law.