Issue:  Vol. 48 / No. 7 / 15 February 2018

Online extra: Friends of the Court: Decisions are not popularity contests


Professor Jesse Choper
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written by Pamela Brown; edited by Molly McKay

"It is not the role of the court to put its finger to the wind in reaching a decision, that's what legislators do," stated Jesse Choper, a law professor at the University of California at Berkeley School of Law (Boalt Hall) and former dean of Boalt Hall. "Whatever method of determination the court uses, it should not take into account what the majority of people think or what the popular will is."

Today, Marriage Equality USA features Choper's amicus brief, along with one filed by the Bar Association of San Francisco that provides a "brief synopsis of opinions decided by this court in the face of shifting and unpopular sentiment." This column is part of a daily series where MEUSA, partnering with the Bay Area Reporter, will highlight each of the 30 amicus "friend of the court" briefs submitted by hundreds of supportive organizations, professional associations, and religious institutions to the California Supreme Court in support of the freedom to marry.

"Rulings of a high court ... that are motivated by concern about popular reaction would not merely harm the individuals whose constitutional protected liberties are at stake, it would threaten to damage the legitimacy and independence of the judiciary in a way that a principled yet controversial ruling would not." – Professor Choper's amicus brief

Within the Court of Appeal decision, the majority stated it was acceptable to continue the ban on marriage for same-sex couples "to avoid the societal risks inherent in overly broad rapid change that rends the fabric of society in ways that cannot be readily assimilated and that may prompt backlash reactions."

"When I read that assertion by the Court of Appeal, I had to file an amicus brief in response," stated Choper. "The independence of the courts is extremely important in protecting individual rights; the major job of the courts is to ensure that minorities, who don't have a strong voice in the political process, have their voices heard by the courts. The courts must give dispassionate decision on constitutional protections for the rights of individuals regardless of what the majority view happens to be."

In his amicus brief, Choper states, "for a court to decline protection until popular attitudes have reached that point of consensus at which its decision will be readily accepted is to shirk its essential duty and contradict its critical function as the government agency of last resort for the guardianship of constitutional liberties." Furthermore, Choper's amicus brief states "the impact of controversial rulings can be less than the initial public reaction might suggest ... a high court's message can have a proselytizing and sober effect, converting an impetuous popular mind into one more receptive to reason. ... One example would appear to be the decision of the Massachusetts Supreme Judicial Court on this very issue."

"Prior decisions of this court demonstrate that social and political issues that were once controversial have endured over time and are now accepted as part of our evolving cultural order ... the court has applied legal principles to promote equality and justice when it has mattered." – BASF's amicus brief

The BASF amicus brief states "because the right to marry, regardless of gender or sexual orientation is fundamental, BASF believes that equality should not be measured in bits and pieces, but the right to marry must be assertively protected by legal principles that transcend political expedience ... (Through our amicus brief) we will show how civil rights that were once considered controversial are now considered well settled and accepted by the vast majority of Californians."

The BASF amicus brief begins, "In practical effect all three branches of government have recognized that this court has the ultimate responsibility to decide whether the right to marry must constitutionally include the right to marry a person of the same sex. The Legislature cannot act alone. The governor will not act. A municipality cannot unilaterally decide to interpret the law for itself. Fortunately, the judiciary is the one branch of government that is realistically charged with the responsibility to decide cases on principle as dictated by the state Constitution, guided by fairness and precedent. The judiciary is not bound by political sentiment or the popularity or unpopularity of current notions of decency, mores or social convention."

BASF's amicus brief goes on to provide numerous examples where this court has ruled on issues of race, reproductive freedom, marriage, property, gay rights, and family relations in times of controversy.

For example, "this court decided Mulkey v. Reitman prohibiting Realtors and apartment managers from discriminating on the basis of race" despite a statewide initiative having been passed by voters to permit such discrimination. In addition, while controversy still exists regarding a woman's right to choose, in 1969, this court recognized in People v. Belous "the fundamental right of the woman to choose whether to bear children" based on "a right to privacy or liberty in matters related to marriage, family and sex." Furthermore, this court recognized in Perez v. Sharp that marriage was "one of the basic civil rights of man."

With over 90 percent of the population in favor of the ban on interracial marriage and 20 years before the U.S. Supreme Court ended the national ban on interracial marriage, this court invalidated a state statute that had made interracial marriage illegal and void.

"Recognizing that same-sex marriage is protected by fundamental right to marry would carry on the court's practice of interpreting the constitution in a manner that protects individual choice." – BASF amicus brief

The BASF amicus brief concludes "allowing gay men and lesbians to marry partners of their own choosing would recognize that marriage is a uniquely personal decision because as the court recognized in Perez , prohibiting a person from marrying another person of his or her choice would, in effect forbid marriage to a unique individual who "may be irreplaceable." ... "Future generations will look back and ask why this question was once controversial."

Within his amicus brief, Choper states, "There is a strong argument in favor of treating homosexuals as a suspect class for equal protection purposes."

In our interview with Choper, he said, "I'm in favor of marriage for gays and lesbians and I'll mention that when I speak at an upcoming conference entitled 'Is Gay Marriage Conservative?' I think the current marriage ban is an abridgement of liberty that has no strong reason to support it, except that people don't like it. Well, there are lots of things people don't like ... that's not sufficient justification."

These two amicus briefs can be found online: PDF 1 and PDF 2

Jesse Choper served as law clerk to Chief Justice Earl Warren of the U.S. Supreme Court following graduation from law school. Currently, Choper is a professor of law at the University of California at Berkeley School of Law (formerly called Boalt Hall), where he has taught since 1965. He served as Boalt Hall�s dean from 1982 to 1992 and has been a visiting professor at six other universities, including Harvard Law School. From 1979 to 1998, Choper was one of the three major lecturers at U.S. Law Week's annual Constitutional Law conference in Washington, D.C. He has delivered 20 titled lectures at major universities throughout the country, including the Roger J. Traynor Lecture at California Judicial College. He was national president of the Order of the Coif and is a member of the American Law Institute. In 1998 he received the UC Berkeley Distinguished Teaching Award and the Rutter Award for Teaching Distinction at Boalt Hall in 2006. The Boalt Hall Alumni Association presented Choper with the Faculty Lifetime Achievement Award in 2005. For more information, go to

Bar Association of San Francisco champions equal access to justice and promotes humanity, excellence, and diversity in the legal profession. BASF provides legal services to disadvantaged and underserved individuals in San Francisco; creates opportunities for legal service in the community and encourage participation by its members; advances professional growth and education, and elevates the standards of integrity, honor, and respect in the practice of law; and cultivates diversity and equality in the legal profession, provide a collective voice for public advocacy, and pioneer constructive change in society. For more information, go to

Marriage Equality USA is a national, nonprofit organization created to secure legally recognized civil marriage equality without regard to gender identity or sexual orientation at the federal and state level. For more information, go to

Previous articles:

Online series looks at legal arguments in marriage case

Friends of the Court: Briefs by black groups cite equality

Friends of the Court: Cities, counties push for change

Friends of the Court: Lawmakers' goal is equality

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