Friday, March 18, 2005

California and Same Sex Marriage

It was bound to happen--a local superior court judge striking down an initiative passed by 61% of California voters. I've only had an opportunity to read newspaper accounts, which you can read from New York, to San Francisco, and Los Angeles. I am also posting a link to the acutal tentative decision by Judge Richard Kramer, so you can read the opinion itself without a press filter. I'm still reading the opinion, so I don't have any analysis yet; however, I will post further after reading and digesting the entire opinion--so check back--probably over the weekend. Of course, this is only one opinion, by one judge, in the most liberal bastion of California, San Francisco. This is the lowest level of review, a trial court, and a long appellate journey is sure to follow.

Nate Oman, an attorney working at Sidley, Austin's Washington D.C office has posted an interesting, and well written legal primer on same sex marriage cases, and posted it on the Times and Seasons Blog . It gives a good general background and basic understanding surrounding these types of legal decisions.

Update: I’ve now had an opportunity to read Judge Kramer’s decision. First, I will update this post by briefly summarizing the legal basis for the opinion, Judge Kramer's analysis and rationale. I will then conclude this post with my own analysis and quotations from other writerw, helping frame my analysis.

Judge Kramer focused the decision on two Family Code provisions, sections 300 and 308.5. Section 300 states that marriage is a personal relation arising out of a civil
contract between a man and a woman. Section 308.5 states that in California only a marriage between a man and a woman is recognized as valid.

The court noted that Family Code section 300 was enacted by the elected state representatives in 1992, replacing the former Civil Code section 4100 (Also enacted by elected representatives of the people). A 1977 amendment to section 4100, again through the elected representatives of the people of the state of California, added that marriage was the union between a man and a woman. (10:4-9).

Family Code section 308.5 resulted from the popular Proposition 22, passed by the people directly on March 7, 2000 by an overwhelming majority vote, 61.4% to 38.6%, a 23 point margin. Judge Kramer took judicial notice of the fact that the legislative history of Family Code section 300 and the voter materials for Proposition 22 made it abundantly clear that both the elected state legislature and the people themselves intended to clarify that under existing law, marriage in California was limited to a man and a woman. (10:10-16).

Judge Kramer noted that same-sex marriage advocates argued that these Family Code provisions violated the equal protection and privacy provisions of the California State Constitution, Article 1 section 7, subdivision (a), and Article I section 1. (3:7-11). He concluded the legal challenge could be resolved on equal protection grounds alone, and did not reach the privacy arguments. (3:7-11).

Judge Kramer recognized that most legislation creates classifications for differing purposes. This can lead to advantages of disadvantages based on those classifications. The power to classify is rooted the United States Constitution, which in turn allows individual states the power to promote the general welfare of its citizens. The state, however, must ensure the classifications must conform with the equal protection clause, which states that no person shall be denied equal protection under the law. (3:12-25).

To determine whether a classification comports with the equal protection clause, the court applies one of two tests: The rational basis test, or the strict scrutiny test. Under the rational basis test, courts usually look at economic and social welfare legislation, where the classifications from the legislation are not “suspect”, and do not implicate fundamental rights. (4:1-7). The burden is on a challenging party to demonstrate the absence of any rational connection to a legitimate state interest.

The strict scrutiny test is more stringent, and arises where “suspect” classifications or fundamental human rights are implicated by the legislation creating the classifications. The court will apply a “strict scrutiny” analysis to the subject classifications. The state must show that it has a compelling interest which justifies the law, and that any distinctions created by the legislation are necessary to further its purpose. (4:17-25).

Judge Kramer concluded that both these Family Code sections, 300, and 308.5 violated the equal protection clause of the California State Constitution, failing both the rational basis test, as well as the strict scrutiny test. (16:9-14; 23:2-13). He concluded these code sections failed to bear some rational relationship to a conceivable legitimate state purpose. (5:16-24). No rational purpose exists for limiting marriage in California to a man and a woman. (6:1-2).

In reaching these conclusions, Judge Kramer rejected the argument that the male/female marriage requirement embodied California’s traditional understanding that marriage is and has been always understood to be a union between a male and female. (6:3-10). He also rejected the argument that California has already granted same-sex couples the same rights that marriage entails. (8:4-9). Another argument rejected by Judge Kramer was that California has a legitimate state purpose in restricting marriage to a man and woman because a primary purpose of marriage is procreation. (12:1-3).

Judge Kramer relies on prior California cases striking down the state’s ban on interracial marriages as violating the United States’ equal protection clause to justify his conclusions in this case. Specifically, he cited Perez v Sharp (1948) 32 Cal. 2d 711 several times, pointing out that California laws banning interracial marriage were unconstitutional, and struck down by the California Supreme Court in Perez. He also cited Brown v Board of Education (1954) 347 U.S. 483 for the proposition that providing registered domestic partnership laws was akin to providing “separate but equal educational opportunities to racial minorities.” (9:14-23).

My Analysis of Judge Kramer’s Decision

I strongly disagree with Judge Kramer’s conclusions and his rationale for reaching those conclusions. First, I am troubled that he seems to rely almost on exclusively on federal law, either through the interpretation of California courts or federal courts to conclude that California’s equal protection clause prohibits the California legislature or California’s voters from enacting laws limiting marriage to a man and a woman. It is inconsistent to claim California’s equal protection clause prohibits the Family Code sections in question, and rely on state and federal court cases that construe the Equal Protection Clause of Fourteenth Amendment to The United States Constitution.

Second, Judge Kramer is wrong about the relationship between California’s man and woman marriage requirement and legitimate state interests. Thomas Jefferson is correct that all men (and women) are created equal; however, simple biology dictates that not all sexual relationships are created equal. Procreation requires both a man and a woman. A homosexual union or “marriage” will never produce children. This is a biological fact that constitutional confusion cannot ignore.

Marriage, between a man and a woman, for thousands of years has enjoyed certain legal and societal privileges, and should continue to do so for obvious reasons. Traditional marriage fosters the most ideal environment for the conception, rearing, and education of children. Marriage between a man and a woman is the basic building block of a stable society. More and more research suggests that children raised in traditional families with both an active mother and father are not only stronger families, but make for stronger societies. I can’t think of a more compelling state interest than fostering stronger families, and by extension stronger societies.

Not long ago, the Massachusetts Supreme Court in Goodridge v Department of Public Health struck down their state marriage laws on similar grounds that Judge Kramer used here. In response, several legal scholars took issue with the Goodridge analysis and opinion. These responses are equally applicable to Judge Kramer’s analysis and I want to share some of them here.

Mitt Romney, Massachusetts’ governor responded to Goodridge in an Op Ed piece in the Wall Street Journal on 2/5/04. In part Governor Romney observed:

Contrary to the court's opinion, marriage is not "an evolving paradigm." It is deeply rooted in the history, culture and tradition of civil society. It predates our Constitution and our nation by millennia. The institution of marriage was not created by government and it should not be redefined by government.

Marriage is a fundamental and universal social institution. It encompasses many obligations and benefits affecting husband and wife, father and mother, son and daughter. It is the foundation of a harmonious family life. It is the basic building block of society: The development, productivity and happiness of new generations are bound inextricably to the family unit. As a result, marriage bears a real relation to the well-being, health and enduring strength of society.

Because of marriage's pivotal role, nations and states have chosen to provide unique benefits and incentives to those who choose to be married. These benefits are not given to single citizens, groups of friends, or couples of the same sex. That benefits are given to married couples and not to singles or gay couples has nothing to do with discrimination; it has everything to do with building a stable new generation and nation.

It is important that the defense of marriage not become an attack on gays, on singles or on nontraditional couples. We must recognize the right of every citizen to live in the manner of his or her own choosing. In fact, it makes sense to ensure that essential civil rights, protection from violence and appropriate societal benefits are afforded to all citizens, be they single or combined in nontraditional relationships.


Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School wrote in the Wall Street Journal on 2/25/04 in part:

President Bush's endorsement of a constitutional amendment to protect the institution of marriage should be welcomed by all Americans who are concerned about equality and preserving democratic decision-making. "After more than two centuries of American jurisprudence and millennia of human experience," he explained, "a few judges and local authorities are presuming to change the most fundamental institution of civilization."

Those judges are here in Massachusetts, of course, where the state is cutting back on programs to aid the elderly, the disabled, and children in poor families. Yet a four-judge majority has ruled in favor of special benefits for a group of relatively affluent households, most of which have two earners and are not raising children. What same-sex marriage advocates have tried to present as a civil rights issue is really a bid for special preferences of the type our society gives to married couples for the very good reason that most of them are raising or have raised children. Now, in the wake of the Massachusetts case, local officials in other parts of the nation have begun to issue marriage licenses to homosexual couples in defiance of state law.

A common initial reaction to these local measures has been: "Why should I care whether same-sex couples can get married?" "How will that affect me or my family?" "Why not just live and let live?" But as people began to take stock of the implications of granting special treatment to one group of citizens, the need for a federal marriage amendment has become increasingly clear. As President Bush said yesterday, "The voice of the people must be heard."

Indeed, the American people should have the opportunity to deliberate the economic and social costs of this radical social experiment. Astonishingly, in the media coverage of this issue, next to nothing has been said about what this new special preference would cost the rest of society in terms of taxes and insurance premiums.

The Canadian government, which is considering same-sex marriage legislation, has just realized that retroactive social-security survivor benefits alone would cost its taxpayers hundreds of millions of dollars. There is a real problem of distributive justice here. How can one justify treating same-sex households like married couples when such benefits are denied to all the people in our society who are caring for elderly or disabled relatives whom they cannot claim as family members for tax or insurance purposes? Shouldn't citizens have a chance to vote on whether they want to give homosexual unions, most of which are childless, the same benefits that society gives to married couples, most of whom have raised or are raising children?

If these social experiments go forward, moreover, the rights of children will be impaired. Same-sex marriage will constitute a public, official endorsement of the following extraordinary claims made by the Massachusetts judges in the Goodridge case: that marriage is mainly an arrangement for the benefit of adults; that children do not need both a mother and a father; and that alternative family forms are just as good as a husband and wife raising kids together. It would be tragic if, just when the country is beginning to take stock of the havoc those erroneous ideas have already wrought in the lives of American children, we should now freeze them into constitutional law. That philosophy of marriage, moreover, is what our children and grandchildren will be taught in school. They will be required to discuss marriage in those terms. Ordinary words like husband and wife will be replaced by partner and spouse. In marriage-preparation and sex-education classes, children will have to be taught about homosexual sex. Parents who complain will be branded as homophobes and their children will suffer.

Religious freedom, too, is at stake. As much as one may wish to live and let live, the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination the likes of which we have rarely seen before. Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles.


Shelby Steele, a fellow at the Hoover Institution took to task the gay rights movement as masquerading in a suit of civil rights to further an agenda of acceptance rather than a pursuit of civil rights base on equality under the law. Mr. Steele, on 3/18/04 in the Wall Street Journal opined:

And now gay marriage is everywhere being defined as a civil rights issue. In San Francisco, gay couples on the steps of city hall cast themselves as victims of bigotry who must now be given the "right" to legally marry in the name of "equality" and "social justice." In the media, these couples have been likened to the early civil rights heroes whose bravery against police dogs and water hoses pushed America into becoming a better country. "I don't want to be on the wrong side of history," a San Francisco radio host said about gay marriage. "Maybe we're looking at thousands of Rosa Parks over at city hall."

So, dressing gay marriage in a suit of civil rights has become the standard way of selling it to the broader public. Here is an extremely awkward issue having to do with the compatibility of homosexuality and the institution of marriage. But once this issue is buttoned into a suit of civil rights, neither homosexuality nor marriage need be discussed. Suddenly only equity and fairness matter. And this turns gay marriage into an ersatz civil rights struggle so that dissenters are seen as Neanderthals standing in the schoolhouse door, fighting off equality itself. Yet all this civil rights camouflage is, finally, a bait-and-switch: When you agree to support fairness, you end up supporting gay marriage.



Mr. Steele pointed out that:

[G]ay marriage is not really struggle for freedom based on a civil rights argument. Rather, it’s a struggle for social acceptance by a currently politically correct body thought:

But gay marriage is simply not a civil rights issue. It is not a struggle for freedom. It is a struggle of already free people for complete social acceptance and the sense of normalcy that follows thereof -- a struggle for the eradication of the homosexual stigma. Marriage is a goal because, once open to gays, it would establish the fundamental innocuousness of homosexuality itself. Marriage can say like nothing else that sexual orientation is an utterly neutral human characteristic, like eye-color. Thus, it can go far in diffusing the homosexual stigma.

In the gay marriage movement, marriage is more a means than an end, a weapon against stigma. That the movement talks very little about the actual institution of marriage suggests that it is driven more by this longing to normalize homosexuality itself than by something compelling in marriage. The happiness that one saw in the faces of the newly married in San Francisco seemed to come primarily from the achievement (if only illusory) of ordinariness. After all, many of them had lived together into old age. Love does not require marriage but, for gays, ordinariness does. And happiness for these couples was in the imprimatur of ordinariness.

Gay marriage, however, differs fundamentally from traditional notions of race and civil rights. Mr. Steele accurately points out that homosexuality is no the same type of difference as are racial differences:

But marriage is only one means to innocuousness. The civil rights framework is another. To say that gay marriage is a civil rights issue is to imply that homosexuality is the same sort of human difference as race. And even geneticists now accept that race is so superficial a human difference as to be nothing more than a "social construct." In other words, racial difference has been made officially innocuous in our culture, and its power to stigmatize has been greatly reduced. Evidence of this is seen in the steady, yet unremarked, rise in interracial marriage rates for all of our races. So if gay marriage, like race, is about civil rights, then homosexuality is a human difference every bit as innocuous. Thus, America should treat homosexuality like it treats race and give gays the "right" to marry as it once gave blacks the right to vote.

So gays benefit from the comparison to both race and civil rights, and this has provoked hostility and even outrage in black America. Black leaders as liberal as Jesse Jackson have distanced themselves from the gay marriage issue, and among black churches an actual movement against gay marriage is unfolding. There is a religious dimension to this, but more broadly there is a simple resentment at having blackness implicitly compared to homosexuality.

The civil rights movement argued that it was precisely the utter innocuousness of racial difference that made segregation an injustice. Racism was evil because it projected a profound difference where there was none -- white supremacy, black inferiority -- for the sole purpose of exploiting blacks. But there is a profound difference between homosexuality and heterosexuality. In the former, sexual and romantic desire is focused on the same sex, in the latter on the opposite sex. Natural procreation is possible only for heterosexuals, a fact of nature that obligates their sexuality to no less a responsibility than the perpetuation of the species. Unlike racial difference, these two sexual orientations are profoundly -- not innocuously -- different. Racism projects a false difference in order to exploit. Homophobia is a reactive prejudice against a true and firm difference that already exists.

Institutions that arise to accommodate these two sexual orientations can never be exactly the same. Across time and cultures, marriage has been a heterosexual institution grounded in the procreative function and the responsibilities of parenthood -- this more than in either love or adult fulfillment. Marriage is simply the arrangement by which humans perpetuate the species, whether or not they find fulfillment in it.

Mr. Steele concludes that gay marriage does not and cannot fit into the traditional notions of marriage between men and women. There is no procreation is gay marriage, and no natural function other than fulfillment of the adult love, upon which it is premised:

The true problem with gay marriage is that it consigns gays to a life of mimicry and pathos. It shoehorns them into an institution that does not reflect the best possibilities of their own sexual orientation. Gay love is freed from the procreative burden. It has no natural function beyond adult fulfillment in love. If this is a disadvantage when children are desired, it is likely an advantage when they are not -- which is more often the case. In any case, gays can never be more than pretenders to an institution so utterly grounded in procreation. And dressing gay marriage in a suit of civil rights only consigns gays to yet another kind of mimicry. Stigma, not segregation, is the problem gays face. But insisting on a civil rights framework only leads gays into protest. But will protest affect stigma? Is "gay lovers as niggers" convincing? Protest is trying to hit the baseball with the glove.

The problem with so much mimicry is that it keeps gays from evolving institutions and rituals that reflect the true nature of homosexuality. Assuming, as I do, that gays should have the option of civil unions that afford them the legal prerogatives of marriage, isn't it more important after that to allow quiet self-acceptance to lead the way to authentic institutions?

The stigmatization of homosexuals is wrong and makes no contribution to the moral health of our society. I was never worried for my children because they grew up knowing a gay couple that lived across the street, or because several family friends were gay. They learned early what we all know: that homosexuality is as permanent a feature of the human condition as heterosexuality. Nothing is gained in denying this. But neither should we deny that the two are inherently different. The gay marriage movement denies this difference in order to borrow "normalcy" from marriage. Thus, it is a movement born more of self-denial than self-acceptance, as if on some level it agrees with those who see gays as abnormal.


Mr. Steele accurately concludes that there are undeniable differences between gay and traditional marriage. They are not constitutional differences that require the protection and invocation of the equal protection clause of either the California or United States’ constitutions. Gay marriage is not a civil right. The ballot box, not the courtroom is where societal social issues such as the definition of marriage should be decided.








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