Published on: Monday, October 21, 2013
Thomas Berg, James L. Oberstar Professor of Law and Public Policy, spoke at the Stanford Symposium on Marriage Equality, held Oct. 11-12 at Stanford Law School.
Berg spoke on “Protecting Same-Sex Marriage and Religious Liberty,” as part of a panel of leading constitutional scholars on the aftermath of the Supreme Court’s U.S. v. Windsor decision striking down the Defense of Marriage Act. His presentation drew from a Supreme Court amicus brief he co-filed in the Windsor case with Douglas Laycock (University of Virginia School of Law) and on behalf of the American Jewish Congress.
The brief argues that the Court should recognize same-sex marriage rights and also strongly affirm the religious liberty of those who object to directly facilitating marriages. Berg’s thesis, as set out in the brief, the Stanford presentation, and an article with Laycock in the online Virginia Law Review in Brief, is that although same-sex couples and religious dissenters are typically pitted against each other, it is sensible to protect both sides because both “make essentially parallel claims on the larger society, and the strongest features of the case for same-sex civil marriage make an equally strong case for protecting the religious liberty of dissenters.”
Berg’s co-panelists, discussing this thesis and other issues after Windsor, included Mary Ann Case (University of Chicago Law School), William Eskridge (Yale Law School), Pamela Karlan (Stanford Law School), and Kenjo Yoshino (New York University School of Law).