I have just finished reading the opinion of the San Francisco Superior Court in the consolidated marriage cases, and I am breathless. Judge Kramer found overwhelmingly in favor of marriage equality, smacking down every aspect of every argument made by same-sex marriage opponents. For those who get excited about legal details as I do, here's the one-minute refresher of equal protection jurisprudence: if a state statute treats some people differently than others based on a classification, then the statute must have some "rational basis" (burden of proof on the challengers), unless the classification is against a "suspect class" or a fundamental right is infringed, in which case "strict scrutiny" is required to find both a compelling state interest (burden of proof shifted to the state) and that the classification is necessary to achieve the objective. In this case, here is the summary of what Judge Kramer found: strict scrutiny applies here both because a suspect class (gender) is the basis for the classification and because a fundamental right is involved, and the statute fails both prongs of the test in lacking a compelling state interest and classifying in an unnecessary way to achieve its interest, and moreover, none of the state interests advanced would even pass the rational basis test. It just doesn't get any stronger than that. In layman's terms, the judge ruled that precluding same-sex marriage is wrong, wrong, wrong.
Here are some highlights. In dismissing any of the purported state interests in precluding same-sex marriage, Judge Kramer first considers the two arguments actually advanced by the State in defense of its law. The first argument was that of tradition, that the State was recognizing and institutionalizing what has always been the way. The judge found that tradition by itself is not good enough, that "a statute lacking a reasonable connection to a legitimate state interest cannot acquire such a connection simply by surviving unchallenged over time." The second argument was that California was not acting out of animus against same-sex couples because it provided essentially the same rights under a domestic partnership law. The judge, noting that this "smacks of a concept long rejected by the courts: separate but equal," found this not only to be not a defense, but actually to operate as an argument against the State:
In this context, the existence of marriage-like rights without
marriage actually cuts against the existence of a rational goverment interest
for denying marriage to same-sex couples. California's enactment of rights for
same-sex couples belies any argument that the State would have a legitimate
interest in denying marriage in order to preclude same-sex couples from
acquiring some marital right that might somehow be inappropriate for them to
have. No party has argued the existence of such an inappropriate right, and this
court cannot think of one. Thus, the State's position that California has
granted marriage-like rights to same-sex couples points to the conclusion that
there is no rational state interest in denying them the rites of marriage as
well.
The judge then examined the legislative history of the statute, and could not find any stated purpose that would amount to a rational basis. (California actually had gender-neutral marriage language until 1977, when that section of Family Code was amended to clarify some issues of consent, age of consent, and gender.) He then turned to the argument that the state interest in marriage was procreation (this argument was not advanced by the State itself, but by the "traditional values" interlopers represented by Randy Thomasson and the Proposition 22 Legal Defense and Education Fund). The interlopers had cited a number of precedents in support of this claim, all of which were along the lines of a man obtaining annulment of a marriage because the wife had concealed that she was sterile or pregnant by someone else. Judge Kramer found that these cases were all being misread, that the fundamental issue in each was fraud. Though the language in some of the precedent opinions talked about procreation as a purpose of marriage (and in fact cited other purposes of marriage, such as happiness), Judge Kramer noted of one case that the language about procreation no more supported a legitimate state interest in precluding marriage than it supported a notion that in California only virgins can marry. He summarized that "the facts in the plaintiffs' cases confirm the 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." He further noted that the language in several of these cases explicitly recognized the legitimacy of non-procreative marriages.
In applying the struct scrutiny test, the judge found that the classification was suspect in that it was based on gender, and that the reasoning was the same as that used in Perez v. Sharp to strike down miscegenation laws, that equal protection applies to individuals not to the groups in which they are classified. He further noted that marriage is a fundamental right. In this regard, the judge considered and rejected the opponents' arguments that the fundamental right was by definition to marry someone of the opposite sex, and that striking down this statute would open the door to incest and adult-child marriages. In response to this latter argument, Judge Kramer noted that it misunderstood how strict scrutiny works. It does not make fundamental rights completely inviolate, rather it limits the extent to which a fundamental right can be regulated. Quoting Perez, "no prohibition of marriage except for an important social objective and by reasonable means." Thus he found that allowing same-sex marriage would not open the door to incest and child-adult marriage.
Finally, the judge gave the procreation argument one final blow by hypothetically applying the "necessary means" test (even though he'd already found it to fail the rational basis, let alone the compelling state interest test) and finding it to fail that too. He found that the current statute does not preclude non-procreative opposite-sex couples, even though it could do so, and that some of the previously cited case law even contemplates and legitimizes non-procreative marriages. He thus finds that the classification is not necessary, in that "unlike other similarly situated classifications of non-child bearers, same-sex couples are singled out."
Of course we must recognize that this trial court decision will be appealed. And I must admit to some trepidation, knowing that this decision will mobilize the "Leviticus crowd" to bring an anti-same-sex-marriage constitutional initiative (likely aiming to repeal domestic partnerships in the process). But at least for the moment, it's great to have such sweeping vindication as provided in this case.
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