The Fourteenth Amendment Strikes Again!

by hilzoy

I'm not trying to set a record for most posts in a short period, but the New York Times has a story I have to write on:

"A California judge ruled today that the state's ban on gay marriage violated the state constitution, despite social traditions and historical definitions that "marriage" is a union between man and woman.

Judge Richard A. Kramer of San Francisco Superior Court held, in an opinion that will surely be appealed, that "no rational purpose exists for limiting marriage in this state to opposite-sex partners."

While many aspects of history, culture and tradition are properly embedded in the law, Judge Kramer wrote, the prohibition against same-sex marriage is not. "The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional," he wrote. (...)

Judge Kramer swept aside the State of California's argument that it was all right to define marriage strictly as a union between man and woman as long as same-sex couples enjoyed virtually the same rights as married couples.

"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal," he wrote, alluding to the doctrine long used to justify racial segregation that the United States Supreme Court ruled in 1954 had no place in public schools.

The judge also dismissed the state's argument that marriage has long been recognized as existing primarily for the sake of producing children. Judge Kramer said it was an "obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married."

Setting aside the bar on same-sex marriage will not intrude on the state's legitimate regulation of marriage, like setting a minimum age for effective consent, the judge said. "Thus, the parade of horrible social ills envisioned by the opponents of same-sex marriage is not a necessary result from recognizing that there is a fundamental right to choose who one wants to marry," he wrote."

Personally, I want to marry the Equal Protection Clause, but I don't think that's legal anywhere. (And just think of the parade of social ills that would be visited on us if we were allowed to marry abstract entities...)

Comments

[John Thullen]

Shall we refer to you as Mrs. Clause?

My wife claims that she has married an abstracted entity, but I try not to take it personally.

Good post.

[hilzoy]

Actually, I've now seen the decision (pdf), and I think it's an equal protection clause of the California Constitution, not the US Constitution, that's at issue. I still want to marry the 14th Amendment, though the enigmatic charms of the 9th are tempting.

[Sebastian Holsclaw]

This is a good news, bad news post. The bad news is that it is likely to provoke an amendment to the California Constitution via referedum. The really bad news is that it would be likely to pass.

[CaseyL]

Has anyone run a poll on the likelihood of such an amendment passing?

[Timmy the Wonder Dog]

The bad news is that it is likely to provoke an amendment to the California Constitution via referedum.

Sebastian, didn't California already hold a referendum to amend the California Constitution on marriage?

[Sebastian Holsclaw]

Hmm. I had forgotten about Prop 22. According to this:

On March 7, 2000, the people of California voted on Proposition 22, a proposal to enact a state "Defense of Marriage Act" as an initiative statute. The text of Prop 22 reads:

“Only marriage between a man and a woman
is valid or recognized in California.”

Proposition 22 was ratified by an overwhelming majority of California voters, prevailing by a 23-point margin. Statewide, 4,618,673 votes were cast in favor of the proposition, comprising 61.4% of the total vote. Opponents garnered 2,909,370 votes, for 38.6% of the vote.

Final vote counts revealed that Proposition 22 won in 52 of California's 58 counties, including all of the major metropolitan areas except for San Francisco. The six counties which did not approve Prop. 22 were all in the immediate San Francisco Bay area, including: Alameda county, Marin county, San Francisco county, Santa Cruz county, Sonoma county, and Yolo county.

This was techinically an initiative which added to the Family Code so I think it doesn't have the force of the CA Constitution. CA Proposition law isn't an area I'm intimately familiar with, so I'm not sure why some count as Constitutional changes and others don't but I'm pretty sure that neither requires more than a simple majority (different for tax laws BTW).

[Katherine]

I think it's the number of signatures required to get on the ballot.

California's constitution is really, really stupid. Just thought I'd throw that out there.

I don't think it would pass based on the Field Polls that I've seen. In May 2004 a Field poll found that 44% of Californians were for same sex marriage, 50% opposed, and they were 50-42 against a constitutional amendment. That was about a federal amendment, but even so--it's better than Massachusetts pre-Goodridge, and the Catholic Church isn't as much as a force out there.

My fondest hope for the issue at the moment is that not only is pro-gay marriage Eliot Spitzer elected as Governor of New York in 2006, but he also gets a Democratic Senate & we do this through the legislature. That's not likely at all, except Spitzer's election, but it's not impossible.

[rilkefan]

Note that it's pretty densely populated around here for some reason - guess the daily earthquakes and weekly mountain lion attacks and the mandatory monthly surfing at Maverick don't dissuade people. Also note that the mood of the state may have changed since 2000. Has to have changed.

[dmbeaster]

This decision is very unlikely to survive an appeal in the California appellate courts. Although the Cal. Supreme Court purposefully did not decide the question in the earlier challenges to the SF gay marriages, I would not be optomistic based on the current make-up of the court nor the remarks made by the Court in connection with that earlier litigation. The current court is conservative, on balance.

The judge who made this decision is elected by the SF electorate. He had to know that deciding for the State would have cost him his job in the next election. It would be nice to think that this decision represented principle, but I seriously doubt it.

An initiative measure to overturn the ruling, if it were to be upheld, would probably pass in California. I don't think things have changed that much from Prop. 22. That measure literally dealt with the more narrow issue of California opting in to the Defense of Marriage Act provisions, but it is doubtful that the electorate saw it that way.

[Sen. Rick Santorum]

"Personally, I want to marry the Equal Protection Clause"

Now you see what happens if we let people engage in man-on-dog. They will then want to stretch it to printed pages-on-woman.

[Davn8r]

Dmbeater is incorrect. This is a California Supreme Court Judge and is not elected but rather appointed by the Governor. This particular Judge (Richard Kramer) was appointed in 1966.

[Davn8r]

Dmbeater is incorrect. This is a California Supreme Court Judge and is not elected but rather appointed by the Governor. This particular Judge (Richard Kramer) was appointed in 1966.

[Jay C]

"They will then want to stretch it to printed pages-on-woman."

Uhhh .. Sen. Rick... isn't that what got Theo Van Gogh into the s---??

[Jay C]

"They will then want to stretch it to printed pages-on-woman."

Uhhh .. Sen. Rick... isn't that what got Theo Van Gogh into the s---??

[Katherine]

It looks there will soon be three more pro-gay marriage legislators in Massachusetts. Three gay marriage opponents retired & their districts held open primaries today. Three gay marriage supporters won. These are very heavily Democratic districts, so the primary is the most suspenseful race. I doubt this was the decisive issue in any of them, but it's doing legislators no harm at all to do the right thing. The only incumbent whose loss you can really chalk up to the gay marriage vote was a staunch opponent of gay marriage who lost to an openly gay candidate.

We're not up to the votes they need to defeat the amendment this fall, but I really think we can get there.

[BadTux]

AGGGHH! What part of "two consenting adults" is so difficult to understand? Why should we care if two consenting adults are male, female, or both, as long as they're capable of consent? And why is it any business of me or mine what these two consenting adults do when it comes to sex anyhow, as long as they don't do it out on the street where they could scare small children or horses?

And hey, don't throw out stuff like sheep, dogs or box turtles (thank you for THAT image, Senator Cornyn, curious penguins want to know: why are Republicans so familiar with the details of beastiality?!), since as far as I know, they are neither consenting nor adults. And unless you've found an abstract concept that can walk down the aisle and recite "I Do" when asked if it consents, I think you're just flat out of luck marrying an abstract concept...

Two consenting adults. T-W-O. One... Two. It ain't brain surgery. DOH!

- Badtux the Snarky Penguin