California Superior Court judge Richard Richard Kramer ruled that two laws, one created by the legislature and one by referendum, were unconstitutional and same-sex marriages were legal in California. The legislation was a 1977 ruling that defined marriage as "a union between a man or a woman". A California proposition passed by over 2/3rds of the state passed in 2000 was also thrown out.
I've read Kramer's ruling
. I'm more inclined to support rulings or opinions like these if they were based on liberty standards rather than so-called equal protection rulings and precedents, such as this one. Especially the sex discrimination argument, which is about as laughable as anti-school voucher advocates arguing those were illegal because churches would get it and thus violate the Establishment Clause. However, when you have activist judges - particularly based in San Francisco, no less - any rationale will be used no matter how stupid.
At The Volokh Conspiracy
, the blogosphere's guide for judicial rulings and legal opinions, Eugene Volokh reminds readers that opponents of the Equal Rights Amendment warned that homosexual marriage among other things could be declared constitutional through it's passage. ERA never passed, but both California and Massachusetts legislatures both passed their own versions, and both were used in the rationale of the courts to overturn homosexual marriages.
What both courts did - and Kramer followed Massachusetts's lead on this - is state that gender discrimination exists because both partners denied of marriage was of the same sex. But that twists the meaning of discrimination. Same-sex advocates weren't denied a marriage license because they were male, or because they were female. They were denied because they were two people of the same sex. Both courts ignored the state granting marriage licenses to both males and females under certain circumstances.
Just because the qualifications of marriage in a state are based on sex does not mean sex discrimination exists. By that logic, as BoiFromTroy
opines, what's stopping them from declaring unisex bathrooms are unconstitutional? And I got another one: why don't they declare unisex sports teams unconstitutional as well?
Let me stop, because that will be next. Continuing...
Another argument the court made, on pg 11, is that the Proposition can't stand because the "discriminatory purpose" of the Proposition "does not determine whether there is nonetheless a legitimate governmental interest" in limiting same-sex marriage. Sorry; I find this argument quite weak, because a Proposition doesn't have to include a rationale in order to be enforced by the government. The mere fact that it was passed by a majority (in this case, a 2/3rds supermajority) means that the courts should be compelled, in my opinion, to find their OWN rationalle in overturning the proposition. For the judiciary to use a law created by the legislature in order to overturn a law that was passed by proposition through the SAME VOTERS WHO ELECT THE LEGISLATURE is flat wrong.
Courts could use this in the future - and probably have already - in order to justify nullifying propositions. If a proposition is going to be treated lower than legislation, or even legal prescedents, for that matter, then what's the use of creating and passing propositions? Lately it seems as if I never hear about any propositions being upheld in court; they're all being overturned.
Finally, you can expect every court that will overturn their respective gay marriage bans to mention Loving v. Virginia, the federal case that interracial marriage bans unconstitutional. However, the only connection they can make between interracial marriage and gay marriage is the discrimination factor. The discrimination argument doesn't hold water when you look at race as a physical and genetic factor while homosexuality is purely behavioral.
That's why I am disgusted when I hear gay rights advocates mention the civil rights advances of the 1960's and try to connect them to their own agenda. With homosexuality being a behavioral trait, you run the risk of setting a standard of making ordinances, whether state or local, of other behaviors unconstitutional. If you use the Loving prescedent to justify gay marriages, I don't see how legislatures won't be forced eventually to legalize prostitution, polygamy, incest, etc. You might think that's insulting and unrealistic, but people were saying the same things about gay marriage 30 years ago, as Volokh showed in the link above.
All I'm saying is, the ends do not justify the means. If you are going to make a coherent argument in order to throw out gay marriage bans, then do it responsibly and use proper legal reasoning. The sloppily written opinions of justices in the past, done mostly through good intentions, have opened up a pandora's box of bad legal opinions based on weak reasoning that has been placed upon the nation against their will. The supposedly good decisions judges make today can be used to make very bad ones tomorrow.