March 18, 2005

Californias marriage ban is found unconstitutional

by Bob Roehr

San Francisco--California�s prohibition on same-sex marriage was found unconstitutional by state Superior Court Judge Richard A. Kramer in a decision released on March 14.

The case, known as Woo/Martin v. State of California, consists of six separate lawsuits filed by pro- and anti-gay parties last year. The suits revolve around two state laws, the Family Code with its man-and-woman definition of marriage and Proposition 22, a �defense of marriage act� passed by voters in 2000 to refuse recognition of same-sex marriages performed elsewhere.

The suits came after the city of San Francisco began issuing same-sex marriage licenses in February, 2004. The weddings were halted by the California Supreme Court a month later, and in August it ruled that the city had exceeded its authority.

The top court stopped short of addressing the marriage law�s constitutionality, waiting for lower courts to do so first. But it did void the 4,037 marriages.

All of the parties in the six current suits have agreed to join them together to expedite the hearing and appeal process for what most believe will be a final resolution by the state supreme court in the next few years.

Judge Kramer�s ruling will not take effect, meaning no same-sex marriages in California, until then.

Kramer, appointed in 1996 by Republican governor Pete Wilson, first examined the state�s �rational basis� for the two marriage laws. He found that �The state�s protracted denial of equal protection cannot be justified simply because such constitutional violation has become tradition.� He cited the 1948 Perez case in which the California Supreme Court struck down a ban on interracial marriage.

He then turned to the U.S. Supreme Court which struck down state sodomy statutes in the 2003 decision Lawrence v. Texas: �The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.�

�Simply put, same-sex marriage cannot be prohibited solely because California has always done so before,� Kramer said.

�Separate but equal� rejected

Since January, a new domestic partner law has given California gay and lesbian couples almost all of the rights and responsibilities of marriage. The state argued in the marriage case that because it grants all those, it can deny the few remaining benefits along with the word �marriage.�

Kramer said the question becomes �whether there is a legitimate governmental purpose for denying same-sex couples the last step in the equation: the right to marry itself.�

�The existence of marriage-like rights without marriage actually cuts against the existence of a rational governmental interest for denying marriage to same-sex couples . . . [it] points to the conclusion that there is not rational state interest in denying them the rites of marriage as well.�

�The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal,� Kramer wrote, citing the landmark 1954 civil rights decision Brown v. Board of Education.

Procreation not the basis for marriage

Right wing plaintiffs also argued that several annulment cases had established procreation as the basis for marriage. Among these were a 19th-century one that allowed a marriage to be annulled after a man found out his new wife was already pregnant by another man. A later case allowed annulment when a new husband discovered his wife had concealed her infertility. Others dealt with a sexless marriage to an older man for his money and another for a green card.

Kramer concluded that the cases revolved around fraud and concealment, not procreation.

�These cases establish that annulment is a remedy for the fraudulent inducement to marry,� he wrote. �The facts in plaintiffs� cases also 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.�

Applying the �strict scrutiny test,� he found that the marriage laws also discriminate by gender. �The marriage law establishes classifications (same gender vs. opposite gender) and discriminates based on those gender-based classifications. As such, for the purpose of an equal protection analysis, the legislative scheme creates a gender-based classification.�

�The starting point is that one can choose who to marry, and that choice cannot be limited by the state unless there is a legitimate governmental reason for doing so,� Kramer ruled. He noted that while the state had successfully demonstrated a legitimate interest in prohibiting a minor under a certain age and closely-related kin from marrying, it had not done so in the case of same-sex couples.

Groups are pleased with ruling

�The court recognized that same-sex couples aren�t treated equally under the law unless we can marry,� said Jennifer C. Pizer, an attorney with Lambda Legal who participated in the case. �This ruling says that same-sex couples deserve all the protections and security marriage provides and that we�re entitled to get them the same way straight couples do.�

�Couples who have made a commitment in life deserve the legal commitment to match,� said Shannon Minter, legal director of the National Center for Lesbian Rights, which brought one of the lawsuits. �This historic ruling affirms the state constitution�s promise of equality and fairness for all people. The court recognized that when the government denies lesbians and gay men the right to marry, it is treating them unequally.�

The anti-gay Proposition 22 Legal Defense Fund and the Campaign for California Families had both declared earlier that they would appeal a ruling against them.

Massachusetts currently is the only U.S. state where there is full marriage for gay and lesbian couples. Vermont has a �civil union� law slightly more extensive than California�s partner law, and narrower partner laws exist in Maine, New Jersey and Hawaii.

Lower courts in New York and Washington state have made rulings similar to Kramer�s, and those decisions are under appeal.

Full same-sex marriage also exists in Belgium, the Netherlands and most of Canada, where a bill in Parliament would expand it nationwide.

Kramer�s ruling is online at www.sftc.org/Docs/marriage.pdf.

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