California Judge Says Ban On Same-Sex Marriage Unconstitutional
Read This While We Wait For Oregon Supremes
While we await the allegedly-forthcoming decision from the Oregon Supreme Court regarding same-sex marriage prior to the passage of Measure 36, a Superior Court judge in California has ruled that the state's statutory definition of marriage is unconstitutional
In the judge's opinion, he says that there was no rational basis for restricting marriage to opposite-sex couples, and that "tradition" was not adequate as an argument. Further, he called upon the spectre of Brown v. Board of Education:
"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts - separate but equal," the judge wrote.
This, of course, has no bearing whatsoever on where Oregon's court will go, since we're dealing with two entirely different states, two entirely different cultures, two different statutory schemes, and different constitutions.
Nonetheless, as we said, chew on this while we wait for the Oregon Supremes to weigh in. It's interesting from a legal standpoint, and in contrast to Oregon, because (discounting Measure 36, which was passed after same-sex marriages were performed here) California had a specific statutory definition of marriage that was very clear in its intent.
Again, it has absolutely no bearing on the case here, other than for purposes of argument and rhetoric, but the philosophical question would be: If a very specific statutory definition is unconstitutional, then shouldn't a murky statutory definition (such as we had here) be unconstitutional as well?
March 15, 2005 at 02:16 PM
One matter that ought not to be missed in this ruling is how the Court has framed the debate. Framing, after all, has become the new mantra for the progressive movement, with George Lakoff advising us to know our values and to use them to frame the debate.
San Francisco County Superior Court Judge Richard Kramer wrote "The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional.”
Why this stands out is that he has framed the discussion NOT as the start of allowing gays to wed, frequently described in sloppy Oregon journalism as “handing out marriage licenses to gays.” Instead the judge talks about stopping a “protracted denial of equal protection.”
The frame is not that we are starting something revolutionary; it’s that we are ending something unconstitutional. Cool.
March 15, 2005 at 03:26 PM
Judge Kramer was appointed by Gov. Wilson and is a registered Republican. I don't think he was trying to frame anything; I think he was just following his judicial ideology.
March 15, 2005 at 03:30 PM
I don't think the intent had to be a reframing in order for the effect to be a reframing.
Interestingly, there was some discussion (last week, was it?) before the Washington Supreme Court, during oral arguments on same-sex marriage up there, about whether or not to view the matter as correcting a discrimination that's always been unconstitutional, or if there was some point in the evolution either of the law or of society at which the discrimination became unconstitutional.
March 15, 2005 at 07:52 PM
B!x - You raise an interesting and subtle distinction between (a) discrimination (or indeed any conduct) that has always been unconstitutional, and conduct that used to be constitutional, but because of some evolution of law or society has become unconstitutional.
My $0.02 is that things we determine to be unconstitutional have always been so, we just failed to protect or prohibit that conduct. Thus, if the Courts determine that prohibiting same-sex marriage violates the Equal Protection Clause (or State Constitutional analog), prior to that ruling we were mistaken in our interpretation of the Constitutional requirements.