Boston University School of Law

March, 2013

Defending Marriage for All: Family Law Professor’s Work Contributes to Recognition of Same-Sex Marriages

Prof. Katharine B. Silbaugh, Law Alumni Scholar; Professor of Law

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Widely recognized for her work on gender, family care and household labor, Family Law Professor Katharine B. Silbaugh also is a pioneer in the legal debate about same-sex marriage. Engaging in the issue both in the classroom and in the courts, she’s been advocating the legal recognition of same-sex marriages for more than a decade.

Silbaugh explains that she became involved in the Massachusetts landmark case Goodrich v. Dept. of Public Health when lawyers from Gay & Lesbian Advocates and Defenders (GLAD) contacted her as a family law professor in 2002 about writing an amicus brief, which she did. That Massachusetts appellate case led to the first same-sex marriages in the U.S., and she has followed the issue ever since.

More recently, she coauthored an amicus brief filed with the U.S. Supreme Court on behalf of family and child welfare law professors asking the Court to strike down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional in the case of U.S. v. Windsor. That section of DOMA defines marriage as a union between a man and a woman for purposes of federal law. Consequently, it denies same-sex couples who are validly married at the state level many rights under federal law.

“The issues I’m addressing are about the relationship between procreation and legal marriage. Many opponents of same-sex marriage say that the purpose of marriage is to support responsible procreation between heterosexual couples who are the only people capable of biological, unassisted or accidental procreation,” says Silbaugh. “Our argument is that nothing in the legal history of marriage supports the contention that its purpose is tied up with procreation even though as a practical matter many marriages often include procreation.”

She continues, “The law and the history of marriage solidly contradict any necessary link between them. Therefore, these procreation arguments cannot provide an explanation for DOMA as rational policy.”

In addition, Silbaugh maintains that the policy of the federal government is to support child welfare regardless of how children come into a family. She points out that every other federal law takes the position that families should be supported in their childrearing without distinction between biological and nonbiological families.

She also served on a leadership team, steering content in an amicus brief to the U.S. Supreme Court in the case of Hollingsworth v. Perry, which raises a similar issue. California’s Proposition 8 eliminated the right of same-sex couples to marry. The Ninth Circuit struck down Proposition 8 on the grounds that it violated the Equal Protection Clause of the 14th Amendment. The amici support affirmance of that decision on an additional ground – that Proposition 8 also violates the Due Process Clause.

Oral arguments were heard in both cases by the U.S. Supreme Court at the end of March, but decisions aren’t expected to be rendered until June.

“Marriage and parenthood are the two fundamental building blocks of family law so the opportunity to talk about their nature and interaction inside the classroom and in the courts has been very gratifying,” says Silbaugh, who joined the faculty at BU Law in 1993 and has been teaching about DOMA since it was enacted in 1996.

“The legal processes in the Goodrich case and these more recent ones have contributed to a spectacular transformation in the way our society views same-sex couples and I’m thrilled to have played some small role in that public legal, social and political dialogue,” she adds.

Reported by Meghan Laska

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