San Francisco County Superior Court Judge Richard Kramer ruled Monday that while withholding marriage licenses from gays and lesbians has been the status quo, it constitutes discrimination the state can no longer justify.

"The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional,'' Kramer wrote. "Simply put, same-sex marriage cannot be prohibited solely because California has always done so before.''

Kramer's decision is stayed automatically for 60 days to allow time for appeals, and conservative groups that oppose same-sex marriages vowed to uphold California's one woman-one man marriage laws.

This decision will be gasoline on the fire of the pro-marriage movement in California as well as the rest of the country.

Monday's ruling is the latest development in a national debate on the legality and morality of same-sex marriage that has been raging since 2003, when the highest court in Massachusetts decided that denying gay couples the right to wed was unconstitutional in that state.

Kramer's decision came in a pair of lawsuits seeking to overturn California's statutory ban on gay marriage. They were brought by the city of San Francisco and a dozen same-sex couples last March, after the California Supreme Court halted the four-week marriage spree Mayor Gavin Newsom initiated when he directed city officials to issue marriage licenses to gays and lesbians in defiance of state law.

Bills before California's legislature would put a constitutional amendment banning same-sex marriages on the November ballot.

Assemblyman Ray Haynes, a Republican, predicted the judge's ruling would spur efforts to amend the state Constitution to ban gay nuptials, as was done in 13 other states last year.

He quite properly concluded that there is no rational, secular reason why same-sex couples can't get married. To deny that right is "impermissibly arbitrary," he said. He noted that lawyers who opposed gay marriage were making arguments similar to those that were used to uphold anti-miscegenation laws and the era of separate but equal.

The arguments against gay marriage are indeed terrible. Either they are based in religious texts, which should not govern our secular democracy, or they are based on tradition. Here's what one of the attorneys arguing against the ruling said: It "flies in the face of common sense and millennia of human history."

But so-called common sense and millennia of human history justified slavery and sanctified the subordination of women.

Kramer's 27-page ruling said same-sex couples had been singled out for special restrictions in violation of equal-protection rights guaranteed to all under the state constitution.

He also found that there was "no rational purpose for limiting marriage in this state to opposite-sex partners."

The judge brushed aside claims that procreation was a legitimate reason for state government to say who could and could not wed, noting that many heterosexuals marry who cannot or do not wish to have children, or that it was sufficient to argue that male-female marriage embodies tradition.

Will activists who support traditional marriage manage to appeal and win back the ban on gay marriage in California? Why or why not?
Nope, it simply won't happen, not in California.  The activists who oppose gay marriage in California simply don't have much clout or voter appeal and they are a small minority, most people in the state pretty much consider them extremists.

Virtually every opinion poll conducted in the state to date supports lifting the ban on gay marriage, so if the legislation were on the ballot today it would likely pass by a comfortable margin.  Furthermore, putting something like this on the ballot is going to have the same exact effect it had in all those states which banned gay marriage in the last election, except in reverse.  There are very many people in the state that don't participate in state elections because they know that democrats/liberals/progressives hold a majority and they don't have to worry about voting to ensure things pass.  I'm willing to bet you'll see more participation for this election in the highly populated areas than we saw for the presidential elections.

LOS ANGELES, March 8, 2000
CBS) The Golden State has dealt a setback to gay marriage.

On Tuesday, voters in California approved state Proposition 22, which declares that only marriages between men and women are legally binding. Though California does not currently license same-sex unions, the measure bans recognition of such marriages performed in any other state.

Final results show Proposition 22 passed overwhelmingly at the polls, 61 percent to 39 percent.

- Exit polls found the measure was supported about equally by men and women and by all races and income groups.
- Opposition to the measure appeared to increase with voters education level and income

CJ - not sure when you made the move to San Fran, but I found your editorializing a bit dissonant to the actual poll that mattered (Proposition 22 in the year 2000).  Why are you so confident that everyone's opinion has changed in the past 5 years?

Judge Kramer is way out over his skis on this one.

And if you think nothing has changed since 2000 then you are wrong, the state has made significant progress since then. Even in the last two years significant progress has been made. I'll have to look around for polls this evening if I get time, but California has consistently been more supportive than the rest of the country.

So I suppose that in stating that, you have not only read the decision which can be found here, but you are intimately familiar with the California State Constitution? Seeing as you live in Illinois I wouldn't think that to be the case, but I could be wrong. This article also sumarizes the key arguments pretty well. It won't be easy to copy text out of that decision until they put it up in a more web friendly form, but I would suggest at least reading the first few pages of it.

Lesbians who bear children with sperm donors sometimes set up de facto three-parent families. Typically, these families include a sexually bound lesbian couple, and a male biological father who is close to the couple but not sexually involved. Once lesbian couples can marry, there will be a powerful legal case for extending parental recognition to triumvirates. It will be difficult to question the parental credentials of a sperm donor, or of a married, lesbian non-birth mother spouse who helps to raise a child from birth. And just as the argument for gay marriage has been built upon the right to gay adoption, legally recognized triple parenting will eventually usher in state-sanctioned triple (and therefore group) marriage.

This year, there was a triple parenting case in Canada involving a lesbian couple and a sperm donor. The judge made it clear that he wanted to assign parental status to all three adults but held back because he said he lacked jurisdiction. On this issue, the United States is already in "advance" of Canada. Martha Ertman is now pointing to a 2000 Minnesota case (La Chapelle v. Mitten) in which a court did grant parental rights to lesbian partners and a sperm donor. Ertman argues that this case creates a legal precedent for state-sanctioned polyamory.

I really don't know.  The legally correct judicial review would certainly produce this result, but I can't say I trust the courts in california to apply anything other than Alice in Wonderland style reasoning.

1) grammatical (textual) interpretation
(2) systemic (structural) interpretation
(3) historical interpretation
(4) evolutionary interpretation (closest to our concept of the living constitution).

A proper analysis of the constitutional provision looks to and balances all four of these elements.

(4) Nothing in this subdivision supersedes or modifies any
provision of this Constitution, including the guarantees that a
person may not be deprived of life, liberty, or property without due
process of law, or denied equal protection of the laws, as provided
in Section 7.

( b ) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.

Do you support the actions nullifying the ban? Why or why not?

Gays should not be allowed to have equal protection as applies to marriage.  Gays are not normal and this fact is acknowledged by the federal government as it relates to federal military service in the law of don't ask don't tell.

there is no comparable clause within Kramer's jurisdiction. Therefore, he exceeded his authority.

Maybe. Everyone thinks of California as a strongly blue state, but the blue areas are comparatively small. It is not impossible that this fact could be exploited.

Fortunately what you think about homosexuals nor what the federal government thinks about them matters in this case Ol Sarge

You should go back and read this post where I lay out the specific parts of the California State Constitution that make this ban unconstitutional. Feel free to try and refute it, I think it is fairly bullet proof. I suppose we'll find out when it gets to the State's Supreme Court.

The biggest thing that counts here is what our state's constitution says.

The judge and those who seem to agree with the thinking in this line simply must be blinded for their love of abnormality in society.

Wow, you just side-stepped the entire argument that this specific thread is for. The judge has (rightly) acknowledged that Marraige provides rights and benefits to people. Denying a section of your population those rights and benefits is in direct violation of the California consitution. Additionally, seperate but equal does apply here, and you would hope that people learned the lessons learned from the civil rights movment provided only 40 years ago. You cannot create a "seperate but equal" instituion for gays for the same reason you can't have seperate bathrooms for blacks.

"The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional," Kramer wrote. "Simply put, same-sex marriage (search) cannot be prohibited solely because California has always done so before."

Furthermore, his ruling is so incredilby flawed that it can't stand the simplest of legal scrutiny. 

Kramer is more interested in winning for his ideology, regardless of the cost to our political infrastructure.

It is prohibited not because California has always done so before, but because a mere 5 years ago the citizens of California, acting directly, prohibited it.

( b ) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.

then the Federal Marriage Amendment will come crashing through so fast that it will make your head spin.

A gay person has the same right to marry as a non-gay person.  So, they're not being denied anything that a non-gay person has.

Where the equal protection provision falls flat on it's face here is that gay people are allowed to marry in California and every where else.  Just so long as that marriage is as is defined by the law, between a man and a woman and other statutes dealing with incest, polygamy, etc.  A gay person has the same right to marry as a non-gay person.  So, they're not being denied anything that a non-gay person has.

There is a fundamental difference between this and the civil rights decisions so often cited by the proponents of gay marriage.  When you deny an entire race the ability to go to a school on the basis of their race alone, that is a violation of equal protection.  If a white person can use a restroom that a black person can't, that's a violation.  Proposition 22 simply defines the instutution of marriage as being between a man and a woman for ALL people.

So applying methods 1 and 2 of your approach to textualism here, what does this actually mean?  Well section 3 states that no citizen of California can be denied equal protection of the laws as defined in section 7.  Sounds simple and clear enough to me.  Please note that homosexuals are citizens of California.

Section 7 is the kicker though - "A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens".  I would say that for the purposes of this case homosexuals are to be consider a class of citizens, other laws consider them this way, especially the one in question - Proposition 22.  I would also say that marriage definitely qualifies as a privilege considering it imparts upon two individuals all kinds of rights simply by signing a document.  Then there is the last part of this that states these privileges have to be granted on the same terms to all citizens.  That means that by giving homosexuals certain benefits of marriage like domestic partner benefits, adoption, etc isn't good enough.

So there is your "textual" meaning of the laws.  The reason California is different than the United States and other states is specifically because of section 7.

Looking for a rational legitimate state purpose, this court begins with the purposes advanced by the State in its oppositions filed herein.  The State offers two purported purposes.  The first is that the male/female marriage requirement embodies California's traditional understanding that a marriage is a union between a male and a female. 

[other purposes are also set forth]

. . . .

[There is] another possible state purpose for the limitation of marriage to opposite sex partners.  These plaintiffs argue that California courts have long recognized that the purpose of marriage is procreation and that limiting the institution to members of the opposite sex rationally would further that purpose.

(1) The first and most important question is whether a "fundamental right" exists at all.  A fundamental right has been defined in our constitutional precedent as one that is "rooted in our nation's history and traditions". 

How can anyone plausibly make the argument that a right to marry someone of the same sex is rooted in our nation's history and traditions?  They can't honestly make that argument.  Same sex marriage has never been recognized in the world's history let alone our country.

Cube Jockey, yes, on its face the equal protection clause applies to the marriage statute's different treatment of "opposite sex" couples and "same sex" couples. But the inquiry does not end there. Precedent (and textualists respect precedent) dictates that the government can, indeed, treat different classes of people differently if it has a reason

I also support civil rights.  Thus, I support rulings that favor civil rights.

How "traditional" of "traditional marriage" do you mean?  Do you mean attempts to roll back to the anti-miscegenation era?  Or perhaps rolling back to the eugenics era (such as laws prohibiting the mentally handicapped from marrying)?

This is not a civil rights issue. No one is being denied the right to marriage as it has always been defined.

( b ) A citizen or class of citizens may not be granted privileges
or immunities not granted on the same terms to all citizens.
Privileges or immunities granted by the Legislature may be altered or
revoked.

It is actually, and especially as it relates to the state of California hayleyanne. I'll again refer you to this, which is a portion of the part of the CA Constitution that serves as the Equal Protection clause:

Traditional in the sense of :  the way it has been defined throughout history-- No matter how marriage has been defined throughout the ages -- it has always involved opposite sexes.  Because it is intricately related to procreation.

So you "agree with history," you say, on this question of gay marriage. As an historian, I don't agree or disagree with "history," which is not a person with an opinion, but merely the record of countless people pursuing their own ends, interacting with one another and their environments through time. (Occasionally they make breakthroughs, producing new things; there's no reason for sentient beings to be stuck on precedent.) "I agree with history" is really a meaningless statement, rather like saying "I agree with time," or "I agree with reality," or "I agree with the way my father and grandfather and my ancestors before them thought about things." What I suppose you're really saying is that you agree with the proposition that heterosexual marriage (of some sort) should be recognized by law, to the specific exclusion of homosexual unions. You deploy in support of that proposition the assertion that this is the way it's always been. Gay marriage, you thus contend, will be a radical departure from our civilized past.

But this is just not true, Governor. You invoke "History" as though it's some source of authority, but you really don't know much about it, do you? "No investigation, no right to speak," I always say, and if you want to talk about homosexual unions in recorded history you should do some study first. First I recommend you read John Boswell's fine book Christianity, Social Tolerance, and Homosexuality (University of Chicago Press, 1980), in which he documents legally recognized homosexual marriage in ancient Rome extending into the Christian period, and his Same-Sex Unions in Premodern Europe (Villard Books, 1994), in which he discusses Church-blessed same-sex unions and even an ancient Christian same-sex nuptial liturgy. Then check out my Male Colors: The Construction of Homosexuality in Tokugawa Japan (University of California Press, 1995) in which I describe the "brotherhood-bonds" between samurai males, involving written contracts and sometimes severe punishments for infidelity, in the seventeenth and eighteenth centuries. Check out the literature on the Azande of the southern Sudan, where for centuries warriors bonded, in all legitimacy, with "boy-wives." Or read Marjorie Topley's study of lesbian marriages in Guangdong, China into the early twentieth century. Check out Yale law professor William Eskridge's The Case for Same-Sex Marriage (1996), and other of this scholar's works, replete with many historical examples.

What the study of world history will really tell you, Governor, is that pretty much any kind of sexual behavior can become institutionalized somewhere, sometime. You know that polygamy remains normal and legal in many nations, as it was among your Mormon forebears in Utah. In Tibet, polyandry has a long history, and modern Chinese law seems powerless to prevent marriages between one women and two or three men. Getting back to same-sex issues, the Sambia of New Guinea have traditionally believed that for an adolescent boy to grow into a man, he absolutely must fellate an adult male and chug the semen down. I'm not making this up; see Gilbert H. Herdt, Guardians of the Flutes (Columbia University Press, 1981). Now you and I would see that as a kind of child abuse, but to the Sambians, it's just common sense. It's been that way for well over 3,000 years of their history. (You might want to ask yourself: does that 3,000 year record make it right?) Some ancient Greek tribes had a similar notion of the necessary reception of semen to make a boy a man, only with them it was an anal-routed process. (See works by Jan Bremmer, for starters, on this practice as an "initiation rite" among various Indo-European peoples.) 

Some suggest that there have been two basic traditions of male homosexual behavior on this planet, prior to the evolution of the contemporary egalitarian model: these inter-generational role-specific ones, in both pre-class and more sophisticated societies; and those that involve males who assume a female or transgender identity, who often also have shamanistic roles, such as the berdache of Native American peoples, or the hijra in Hindu society. These are generally available for "straight" men to bed with if they want to. A variation of this tradition is the ancient Mesopotamian male temple-prostitute (the cult of which spread to Israel, as recorded in the Old Testament; see 1 Kings 14:24, 22:47, etc.). The idea was, you'd bugger one of these holy prostitutes, mystically unite with the deity thereby, and by your fee for this pleasure opportunity, assist in the maintenance of the temple. I'm not trying to gross you out or anything, Governor, just help you recognize that there may be more things in heaven and earth than are dreamt of in your (somewhat too confident) philosophy of sexual history.

On Marriage in "Recorded History": An Open Letter to Massachusetts Gov. Mitt Romney

It is actually, and especially as it relates to the state of California hayleyanne. I'll again refer you to this, which is a portion of the part of the CA Constitution that serves as the Equal Protection clause:


Given this provision it is definitely a civil rights issue.

If this is a civil rights issue then if the CA Supreme Court agrees with the judge decision and your agreement then all members of the CA  NG may demand the rights of married service members by simply stating John and Jim desire marriage, Jane and Sally desire marriage, we are not homosexual we are simply desiring additional compensation equal to married couples under the provisions of Section 7 Item 2 Part b

The fact that they are a "Class of citizens" means that gay people can fundamentally change the definition of a word in the English language - marriage. Marriage is and always has been the union of a man and woman, recognized by the State, generally (but not in all cases) concurrent with some faith-based exchange of vows - love honor obey etc., and some eye towards pro-creating and giving kids "a last name." I just don't see how this judge's logic prevails. I know that I'm being simplistic, but shouldn't voters and laws and society be able to decide the definition of a word, not a judge? You know, like when voters decide that pot is "medicine"

Is Judge Kramer within his right to lift the ban on gay marriage in California? Also, do you believe he truly has the best interests of everyone at heart? Why or why not?

Do you support the actions nullifying the ban? Why or why not?

This is not a civil rights issue. No one is being denied the right to marriage as it has always been defined.

Traditional in the sense of : the way it has been defined throughout history-- No matter how marriage has been defined throughout the ages -- it has always involved opposite sexes. Because it is intricately related to procreation.

In other words it is a ridiculous argument and has nothing to do with whether this is a civil rights issue.

Just a quick add - a less ridiculous example.

If it's Abdul and Sarah and Jane and Sheila vs. the hypothetical "Jim and Joe" example, and Abdul is a Muslim (class of citizens), and polygamy is his thing, who is he to be denied? I mean, it's not like the word "marriage" means anything, except what a judge says, right? It's a civil rights issue.

And now we have a slippery slope argument The difference is that the state does have an interest in preventing polygamy for numerous legal reasons. As this judge cited, there is no legal reason to prevent homosexual marriage.

Just a quick add - a less ridiculous example.

If it's Abdul and Sarah and Jane and Sheila vs. the hypothetical "Jim and Joe" example, and Abdul is a Muslim (class of citizens), and polygamy is his thing, who is he to be denied? I mean, it's not like the word "marriage" means anything, except what a judge says, right? It's a civil rights issue.

How can the government deal with Joe and Joe and Jane and Jane if to do so is a violation of their civil rights.  This would not be a gay issue it would be a civil rights issue since the arrangement is simply a desire to exercise a CA civil right.  I think this "civil rights" thought is full of holes and based on a wish.

The fact that they are a "Class of citizens" means that gay people can fundamentally change the definition of a word in the English language - marriage.  Marriage is and always has been the union of a man and woman, recognized by the State, generally (but not in all cases) concurrent with some faith-based exchange of vows - love honor obey etc., and some eye towards pro-creating and giving kids "a last name." 

1 a  (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law  (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage <same-sex marriage> b : the mutual relation of married persons : WEDLOCK c : the institution whereby individuals are joined in a marriage

Got News for you, it already HAS been changed.  Merriam Webster is the definitive dictionary for the English Language.  Here's what I found today:

http://www.m-w.com/cgi-bin/dictionary?va=marriage



And the people fighting this issue have only solidified the acceptence of this word in the English language.

Argument, meet the window.

Hmm, what we have here is a nice strawman argument coupled with something completely unrealistic.

1) If Jim and John desire to get married, I guess they could. But you of all people should know the hell they'd catch for that being in the National Guard. I highly doubt that enduring that would be worth it for a little bit better housing and possibly a little more pay.

2) Still looking at this situation, this "couple" would pay more in taxes because their income would be combined and their standard deduction would be reduced. Marriage is not exactly beneficial tax-wise.

3) When this "couple" decided they were tired of masquerading they would have to get a divorce, that means that if John decided he wanted to go after Jim's assets he could.

In other words it is a ridiculous argument and has nothing to do with whether this is a civil rights issue.

Yes, Joe and Joe and Jane and Jane could do that, but so could Joe and Jane, yet they don't even though they've been able to for two decades... Why is that? Maybe because your hypothetical is completely unrealistic?

First I recommend you read John Boswell's fine book Christianity, Social Tolerance, and Homosexuality (University of Chicago Press, 1980), in which he documents legally recognized homosexual marriage in ancient Rome extending into the Christian period, and his Same-Sex Unions in Premodern Europe (Villard Books, 1994), in which he discusses Church-blessed same-sex unions and even an ancient Christian same-sex nuptial liturgy.

Then check out my Male Colors: The Construction of Homosexuality in Tokugawa Japan (University of California Press, 1995) in which I describe the "brotherhood-bonds" between samurai males, involving written contracts and sometimes severe punishments for infidelity, in the seventeenth and eighteenth centuries. Check out the literature on the Azande of the southern Sudan, where for centuries warriors bonded, in all legitimacy, with "boy-wives." Or read Marjorie Topley's study of lesbian marriages in Guangdong, China into the early twentieth century. Check out Yale law professor William Eskridge's The Case for Same-Sex Marriage (1996), and other of this scholar's works, replete with many historical examples.

What the study of world history will really tell you, Governor, is that pretty much any kind of sexual behavior can become institutionalized somewhere, sometime

You know that polygamy remains normal and legal in many nations, as it was among your Mormon forebears in Utah. In Tibet, polyandry has a long history, and modern Chinese law seems powerless to prevent marriages between one women and two or three men. Getting back to same-sex issues, the Sambia of New Guinea have traditionally believed that for an adolescent boy to grow into a man, he absolutely must fellate an adult male and chug the semen down. I'm not making this up; see Gilbert H. Herdt, Guardians of the Flutes (Columbia University Press, 1981). Now you and I would see that as a kind of child abuse, but to the Sambians, it's just common sense. It's been that way for well over 3,000 years of their history. (You might want to ask yourself: does that 3,000 year record make it right?) Some ancient Greek tribes had a similar notion of the necessary reception of semen to make a boy a man, only with them it was an anal-routed process. (See works by Jan Bremmer, for starters, on this practice as an "initiation rite" among various Indo-European peoples.)