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Judge Strikes Down Ban on Same-Sex Marriage
Published on Tuesday, March 15, 2005 by the San Francisco Chronicle
Judge Strikes Down Ban on Same-Sex Marriage
The Ruling: Law Violated 'Basic Human Right'
by Bob Egelko
 

A San Francisco Superior Court judge declared California's ban on same-sex marriage unconstitutional Monday, saying it violates the "basic human right to marry a person of one's choice.''

More than a year after San Francisco Mayor Gavin Newsom directed the county clerk to issue marriage licenses to gay and lesbian couples at City Hall, Judge Richard Kramer gave legal vindication to Newsom's rationale: that the state's 28-year-old law defining marriage as a union between a man and a woman is arbitrary and unfair.

"No rational purpose exists for limiting marriage in this state to opposite-sex partners,'' Kramer wrote in a decision that relied on rights guaranteed by the California Constitution. He cited as precedent another groundbreaking ruling, the state Supreme Court's 1948 decision striking down California's law against interracial marriage.

Kramer's decision will not take effect during appeals that are likely to wind up in the state Supreme Court sometime next year.

The ruling comes against a national backdrop of similar court decisions in a few other states -- Massachusetts, New York and Washington -- and a backlash that has fueled state constitutional bans on same-sex marriage in 11 states and a movement in Congress for a constitutional ban on the marriages nationwide. A federal amendment appears unlikely to pass, despite support from President Bush.

Kramer's ruling was celebrated by gay-rights advocates and San Francisco city officials, who joined a number of same-sex couples in challenging the marriage law.

The judge recognized that "no family in the state is second-class anymore, '' said John Lewis, who took part in the lawsuit after his City Hall marriage to longtime partner Stuart Gaffney was nullified by the state Supreme Court last year.

Opponents said the ruling was an example of judicial activism that may have to be reined in by the voters.

"The people of California will move forward, just as in other states, to amend their constitutions in order to take judges out of the marriage- management business,'' said Mathew Staver, president of Liberty Counsel, a Florida-based group that represented the Campaign for California Families in defending the state law.

Randy Thomasson, executive director of Campaign for California Families, denounced Kramer's decision as "a crazy ruling by an arrogant San Francisco judge who apparently hates marriage and hates the voters,'' but did not announce immediate plans for a ballot measure. His group was active in the 2000 campaign for Proposition 22, which reaffirmed the state's definition of marriage as a union of a man and a woman but did not change the state Constitution. The measure passed with 62 percent of the vote.

Speaking at Stanford University, where he appeared on MSNBC's "Hardball With Chris Matthews," Gov. Arnold Schwarzenegger said he had hoped the court would uphold Prop. 22, "the will of the people.''

"I believe in what we have right now, which is domestic partnership rights,'' the governor said. He said he would accept the state Supreme Court's ultimate decision, but added, "I don't believe in gay marriage.''

Assemblyman Mark Leno, D-San Francisco, said he would continue to push for a bill in the Legislature that would legalize same-sex marriage by removing gender references from the state's marriage law.

Newsom, at a City Hall press conference, said he looked forward to the day when "we'll look back and say, 'What was the big deal, and why was this such a controversial thing?' "

The case landed in Kramer's court after the state's high court ruled last August that Newsom exceeded his authority by ordering city clerks to ignore the state ban and issue marriage licenses to same-sex couples. That ruling voided nearly 4,000 weddings performed at City Hall in the month that followed Newsom's Feb. 12 decree, and made it clear that the marriages would not be revived even if the law were later struck down.

The court declined to rule on the validity of the state law, preferring to let the issue move through lower courts. Lawsuits by the city, same-sex couples in San Francisco and Los Angeles, and groups opposed to same-sex marriage were joined and argued before Kramer, a 1996 appointee of Republican Gov. Pete Wilson.

In Monday's 27-page ruling, Kramer said the marriage law violates fundamental rights, discriminates on the basis of gender and lacks any rational justification. He rejected Attorney General Bill Lockyer's argument that California was entitled to maintain the traditional definition of marriage while granting gay and lesbian couples most of the rights of spouses in a domestic-partner law that took effect this year.

A discriminatory law "cannot be justified simply because such constitutional violation has become traditional,'' Kramer said. He said the same argument was made and rejected in 1948, when the California Supreme Court became the first in the nation to strike down a state ban on interracial marriage.

Kramer dismissed the domestic-partner rationale as separate but equal, a legal concept long ago struck down by the courts, and said the new law merely strengthens his conclusion that "there is no rational state interest in denying (same-sex couples) the rites of marriage as well.''

A crucial point of the ruling was the judge's conclusion that the marriage law amounts to sex discrimination, a finding that is enough to overturn virtually any California law under the state's strict constitutional standard. The law makes "the gender of the intended spouse ... the sole determining factor'' of the legality of a marriage, Kramer said; he said claims by the law's defenders that the law treats men and women equally were no more valid than earlier claims that anti-interracial marriage laws treated whites and blacks equally.

The state Supreme Court's 1948 ruling established not merely that mixed- race couples could marry but that "one can choose who to marry'' and that the state cannot interfere without a legitimate reason, Kramer said. He said the state can impose health-related restrictions, like the ban on marrying close relatives, but cannot discriminate based on arbitrary classifications.

The judge also rejected the chief argument of conservative groups that entered the case to defend the law: that the purpose of marriage is procreation and child-rearing by a husband and a wife. That rationale is at odds with a law that allows opposite-sex couples to marry regardless of whether they can, or want to, have children, but disqualifies same-sex partners who are raising children, Kramer said.

"One does not have to be married in order to procreate,'' he said, "nor does one have to procreate in order to be married.'' THE BATTLE OVER SAME-SEX MARRIAGE

The decision: A state judge in San Francisco ruled that California's ban on same-sex marriage is unconstitutional.

Why: He said the law denies citizens the basic human right to choose whom they can marry and discriminates on the basis of gender.

What's next: The ruling will be appealed to the state Court of Appeal in San Francisco. Meanwhile, opponents are considering a plan to go to the ballot with a constitutional amendment banning same-sex marriage. A look at key passages in the judge's ruling

Excerpts from Monday's ruling by San Francisco Superior Court Judge Richard Kramer declaring the state's ban on same-sex marriage unconstitutional:

"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal.''

"One does not have to be married in order to procreate, nor does one have to procreate in order to be married.''

"The marriage laws establish classifications (same gender vs. opposite gender) and discriminate based on those gender-based classifications.''

"Family Code Sections 300 and 308.5 (the laws defining marriage as the union of a man and a woman) implicate the basic human right to marry a person of one's choice.''

"Under our present opposite-sex only law, marriage is available to heterosexual couples regardless of whether they can or want to procreate. As long as they choose an opposite-sex mate, persons beyond child-bearing age, infertile persons, and those who choose not to have children may marry in California. ...Unlike the other similarly situated classifications of non- child bearers, same-sex couples are singled out to be denied marriage.''

Staff writers Paul Feist, Greg Lucas, Rona Marech, Suzanne Herel and Carla Marinucci contributed to this report.

© 2005 San Francisco Chronicle

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