San Francisco Superior Court judge rejects “separate but equal” approach to gay unions
For the fourth time in the past year, a state trial judge has found that no legally sufficient reason exists to deny same-sex couples the right to marry.
Following the example of two Washington State trial judges and a New York State judge, San Francisco Superior Court Judge Richard A. Kramer ruled on March 14 that denying same-sex couples such a right violates the equal protection requirement of the California Constitution.
Once Kramer’s “tentative” decision becomes final, probably later this month, it is automatically stayed for 60 days to give the losing parties an opportunity to appeal.
But in this case, unlike that of New York City, the decision to appeal is not up to San Francisco’s mayor, Gavin Newsom, since the city, the plaintiff in one of the cases, was on the winning side.
There were six cases, all consolidated for hearing before Kramer, presenting a complicated line-up of plaintiffs, who were on both sides of the underlying issue. Immediately after the decision was announced, it was clear that two plaintiffs, The Proposition 22 Legal Defense and Education Fund, and Randy Thomasson, would appeal. These plaintiffs had sued the city of San Francisco seeking to end Mayor Newsom’s action last winter of granting marriage licenses to same-sex couples.
The defendants who will likely appeal are the State of California, sued in three of the cases, and Los Angeles County, which was sued for a marriage license by a same-sex couple.
Because the case is being litigated solely on state constitutional grounds, it will not be eligible for appeal to the U.S. Supreme Court. The final judicial stopping place will be California’s Supreme Court.
But the looming question is whether the case will be short-stopped by California’s initiative process, since the immediate result of the opinion is likely to be a quick attempt by marriage opponents to put an anti-marriage constitutional amendment on the ballot and get it passed before the lawsuit can get to the state’s highest court.
In the meantime, however, Kramer has produced an opinion noteworthy for its straightforward logic.
Under California’s equal protection provision, discriminatory state policies can be evaluated under either a “rational basis” test, which merely requires that a statute further a legitimate public policy, or a “strict scrutiny” test, under which statutes must be related to “compelling” interests for which the statute is “necessary.” The strict scrutiny test must be used in cases involving “fundamental rights” or in cases where the classification employed in the law—such as sex—is “constitutionally suspect.”
Kramer decided that the appropriate test for this case is strict scrutiny, having decided that the state’s marriage law discriminates by establishing a classification based on sex, and that the right to marry is a fundamental right. However, maximizing the likelihood that his decision will stand up on appeal, Kramer concluded that it did not matter which test he used, because the law did not even have a rational, never mind compelling, justification.
The state had argued that the law was justified by the goal of preserving its traditional definition of marriage, and by the fact that the recently enacted law granting registered same-sex domestic partners almost all the same rights as married couples eliminated any unconstitutional discrimination.
Kramer dismissed the first argument by pointing out that the 1948 California Supreme Court ruling in Perez v. Sharp, which struck down a law banning interracial marriages, specifically rebuffed the state’s argument that it was justified by tradition. Kramer said that the same reasoning applied to same-sex marriage.
He also cited Lawrence v. Texas, the U.S. Supreme Court’s 2003 sodomy decision, in support of the same point.
As to the state’s second argument, Kramer found that California’s decision to extend virtually all the state law marriage rights to same-sex couples actually cut against its argument, because it showed that the state had decided as a matter of legislative policy that same-sex couples were entitled to the same rights as opposite-sex couples. If that is so, what is the justification for denying the right to marry itself?
“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,” Kramer wrote.
Kramer also argued that the state’s argument “smacks of a concept long rejected by the courts: separate but equal,” citing the U.S. Supreme Court’s historic 1954 decision, Brown v. Board of Education of Topeka, which struck down racial segregation in public schools.
The two anti-marriage plaintiffs had advanced an additional argument, the timeworn contention that the state has a rational interest in limiting marriage to opposite-sex couples because of the link between marriage and procreation. Kramer rejected this as well, pointing out that many couples who are allowed to marry can’t have children due to age or physical limitations, or have no interest in having children. On the other hand, same-sex couples can have children through donor insemination or surrogacy or adoption, and plenty of unmarried people have children.
In his opinion, Kramer explained why he found that a strict scrutiny test should apply in this case, noting that marriage—not simply opposite-sex marriage—has long been considered a fundamental right. He dismissed the contention that opening up marriage to same-sex couples will lead to demands for marriage rights for siblings, for marriages between adults and minors or for polygamy, explaining that finding a right to be fundamental is merely the beginning of an analysis that examines the state’s justification for any limitations it imposes.
“The state can preclude incestuous marriages as well as establish a minimum age for effective consent to marriage,” he explained, “because such limitations on the fundamental right to marry would further an important social objective by reasonable means and do not discriminate based on arbitrary classifications. 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.”
Kramer announced that the opinion he was releasing was “tentative” so that the parties could suggest “proposed revisions” on or before March 25. But, he said, “such proposed revisions shall not reargue the substance of the matters decided but rather shall be limited to drafting and other similar matters.”
Consequently, the final decision will not be announced until some time after March 25 when Kramer has had an opportunity to review proposed revisions. After the opinion is made final, the 60-day stay will go into effect to allow time for appeals to be filed.