On March 14, 2005, a San Francisco district court judge, Richard Kramer, ruling on a case consolidated from several different lawsuits, held that California laws prohibiting same-sex marriage, and refusing to recognize same-sex marriages from other states, violated the Equal Protection Clause of that state's Constitution. The case was entitled simply "Marriage Cases, Judicial Council Coordination Proceeding, 4364." This isn't the end, or even the beginning of the end, but I think it is the end of the beginning, for the issue of same-sex marriage and the law.

A little background on Equal Protection law, first: the Equal Protection Clause is part of the Fourteenth Amendment to the United States Constitution. It was passed after the American Civil War to protect newly-freed black slaves from laws passed by state legislations dominated by the white majority. Like most states, California has a similarly worded clause in its State Constitution. Enforcing the Equal Protection clause is anti-democratic and anti-majoritarian, by definition. Calling it "judicial tyranny", as same-sex marriage opponents do, misses the point of the Equal Protection clause: protecting minorities from majority rule. A better argument would be that the Equal Protection Clause was intended to protect only racial minorities, not just any old group of people who decide they are oppressed. In fact, the Equal Protection clause does not void every law which singles out classes of people for different treatment. For example, criminals cannot challenge criminal statutes on the ground that they are being treated differently from law-abiding people.

Precisely where to draw the line has been the subject of volumes and volumes of judicial reasoning. Currently, equal protection law identifies two situations where judges must give legal classifications "strict scrutiny". Strict scrutiny puts a heavy burden on the government to show that there is not only a compelling reason for the law, but that it is narrowly tailored to further that purpose. First, there are "suspect" classifications. Race is the paradigm "suspect" classification, but other instances of groups which have suffered a "history of invidious discrimination" have also been recognized. While this line of reasoning seems to apply to homosexuals, the Supreme Court has in recent decades been very reluctant to announce any new "suspect classes". They balked at recognizing "women" as a suspect class, despite well documented histories of invidious and cruel discrimination, primarily because the Court saw at least some rational bases for treating women differently. Theoretically, this means that not all classifications based on gender are inherently "suspect". The Court is highly unlikely to recognize new "suspect" classes, and to do so in the case of homosexuals would give grist for the mill of those who like to accuse the judiciary of being "activist".

The other basis for strict judicial scrutiny under the Equal Protection Clause is a fundamental right. Fundamental rights are those rights which everyone should enjoy, and it would be unfair to deny to one group of people. These include all the rights enumerated in the federal Constitution, as well some additional rights deemed by judges to be "implicit in the concept of ordered liberty", including the right to marry. In Judge Kramer's opinion, he applies a fundamental rights analysis whenever he says he is applying "strict scrutiny". Since, however, there is no Supreme Court case recognizing same-sex marriage as a fundamental right, his reasoning had to proceed by analogy. The analogy he chose was to miscegenation laws.

The analogy to laws prohibiting "negroes" from marrying "whites" is historically very apt for a California judge. California was the first state where the highest state court ruled that miscegenation laws denied a fundamental right to marry and thus violated the Equal Protection principle. See Perez v. Sharp, 32 Cal 2d 711, 712, 198 P2d 17 (1948). It was not until almost two decades later, in Loving v. Virginia, 388 US 1 (1967) that the United States Supreme Court came to the same conclusion when it struck down a similar Virginia anti-miscegenation law. Both of these cases involve a marriage between a man and a woman, and so technically do not establish an airtight precedent for same-sex marriage. Thus, Judge Kramer was careful to apply the least stringent legal test of all under the Equal Protection clause: the "rational basis test".

If a law doesn't infringe on a fundamental rights or involve a "suspect class", it can still be challenged as totally arbitrary and unreasonable. As long as the government can advance a "rational basis" for a law, it survives the test. The reason doesn't have to be based on evidence or facts, it just has to make sense. In effect, the judge says, "Give me one good reason why the government needs this law" and if a lawyer can make up a good reason off the top of his head, then the law stands. Here Judge Kramer's opinion rests on solid United States Supreme Court precedent. The Supreme Court has thrown out a Colorado law which abolished local civil rights laws protecting homosexuals (equal access to housing, employment, etc.) using the "rational basis test". Romer v. Evans, 517 U.S. 620 (1996).

Also, the Supreme Court has recognized that sexual activity between consenting adults is a protected exercise of "liberty", and struck down Texas' sodomy laws. Lawrence v. Texas, 539 US 558 (2003). Technically, Lawrence was a Due Process case, not an Equal Protection case, and the Court stated that its holding did not extend to the issue of same-sex marriage. Lawrence does foreclose, however, the easiest "rational basis" argument the government could have made here: that sodomy is a crime and prohibiting same-sex marriage helps fight crime.

Now that sodomy laws are unconstitutional, opponents of same-sex marriage are struggling to find a rationale for their position which will stand up in a court of law. "The Bible says so" is not a very effective legal argument, especially in this case, where the Bible says no such thing. The government, pointing out that California law already extends many of the legal protections of marriage to same-sex couples, tried to make a case that California was not discriminating against homosexuals, but asserted that the government had an interest in reserving the term "marriage" for couples who can procreate. Citing language in some 19th century California cases, the government argued that it had a legitimate purpose in defining "marriage" to include only couples who can procreate. Judge Kramer dispensed with this argument by pointing out that opposite sex couples who either cannot or do not want children are allowed to marry in California. In California, the judge observed, "One does not have to be married in order to procreate, nor does one have to procreate in order to be married."

Moreover, Judge Kramer noted, the fact that same-sex couples enjoyed all the benefits of marriage under California law, except the dignity of the name of "marriage", suggests that there was no legitimate government purpose for the law depriving them of that dignity. Tradition isn't enough, when entire classes are being denied fundamental rights for no reason other than tradition.

Opponents of same-sex marriage immediately stepped up to microphones to call the decision "ludicrous", "mind-boggling", "activist", and "judicial tyranny". Talking heads on the television announced in grave tones that the decision "was certain to be appealed", suggesting there was something wrong with it. In fact, while the decision will be appealed, it will be affirmed. In light of controlling precedent from the United States Supreme Court and similar California State Supreme Court rulings, it does not appear to me that Judge Kramer (who is decribed to be a Catholic and Republican in his personal life) had much choice in ruling the way he did, nor will the California Supreme Court.

Judge Kramer's decision was expressly based on the Constitution of the State of California. This has led some same-sex marriage opponents to announce that they will seek to amend the state constitution. State constitutions are easier to amend than the federal Constitution. Two bills are pending before the California Legislature that would put a constitutional amendment banning same-sex marriage on the November ballot, and if the passage of Proposition 22 (one of the laws defining marriage in California as between a man and a woman) is any indication, such an amendment could succeed. State constitutional amendments prohibiting same-sex marriage passed last year in a dozen states.

Amendments to state constitutions will not help in the inevitable battle at the federal level. The cases cited by Judge Kramer —United States Supreme Court decisions based on the Fourteenth Amendment to the federal Constitution— show that his decision was compelled by the United States Constitution. Thus, opponents of same-sex marriage will have to muster better arguments to persuade the United States Supreme Court, or gather together the super-majority (3/4) of state legislatures necessary to amend the United States Constitution, if they expect to prevail in the end. A dozen "red states" are not enough to amend the federal Constitution.

In the Supreme Court, the only plausible argument I can think of would be something based on the New Federalism: the notion that some areas of law are for the States to decide. Granted, this would sound a lot like the "States Rights" arguments which were shot down in flames during the civil rights movement. "States Rights" might be more acceptable to the Court now, if it were limited to marriage and domestic relations laws, which in the United States have always been the prerogative of state legislatures to define and regulate, and which vary considerably from state to state. This would require, however, some fancy legal footwork to distinguish Loving v. Virginia, Romer v. Evans, and Lawrence v. Texas, and I don't give it a snowball's chance in Hell. If the commentary on this case from the Religious Right is any indication, they will certainly fail to persuade the necessary supermajority of the American people. As Lincoln said, "You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time."

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