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Calif. judge strikes down ‘gay marriage’ ban; law had been passed by 61 percent of voters

Updated March 15, 2005

SAN FRANCISCO (BP)–A California judge March 14 ruled that the state’s ban on same-sex “marriage” violates the state’s constitution, overturning a law that had been approved by 61 percent of voters in 2000.

Superior Court Judge Richard A. Kramer, a San Francisco judge, ruled that all of the state’s laws that limited marriage to one man and one woman were unconstitutional under the state’s equal protection clause. The ruling will be appealed, and likely ultimately will be decided by the California Supreme Court.

“[I]t appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners,” he wrote in a 27-page ruling.

Including California, judges in four states have issued pro-“gay marriage” rulings in the past two years. Massachusetts’ high court issued its landmark decision in 2003 legalizing same-sex “marriage.” Lower courts in Washington state and New York also have issued similar decisions in recent months. The Washington Supreme Court is considering that state’s case, while the New York decision is being appealed.

The California ruling comes five years after voters there passed a law, Proposition 22, specifically banning same-sex “marriage” by a margin of 61-39 percent.

Pro-family leaders criticized the ruling.

“It’s outrageous that a court has overturned the will of the people … and I think it underscores why we need a state and federal constitutional amendment to protect the will of the people — and most importantly protect marriage,” Liberty Counsel’s Mathew Staver told Baptist Press.

Liberty Counsel is representing the Campaign for California Families. Another pro-family legal organization, Alliance Defense Fund, is representing the Proposition 22 Legal Defense & Education Fund.

“This issue will ultimately be again decided by voters — not by the courts,” ADF’s Glen Lavy told BP, speculating that a petition movement will begin to ban same-sex “marriage” within the California constitution.

The court system lies at the heart of homosexual activists’ strategy to legalize same-sex “marriage.” While they have yet to defeat a constitutional marriage amendment at the ballot box — they went 0-for-13 last year — they have made considerable progress in the legal realm.

California’s case began when a dozen homosexual couples and the city of San Francisco sued the state, seeking to overturn the ban. All total, eight states are involved in “gay marriage” lawsuits.

In his ruling Kramer quoted extensively from Perez v. Sharp, the 1948 California Supreme Court case that overturned bans on interracial marriage. He also quoted the U.S. Supreme Court’s 2003 decision overturning anti-sodomy bans.

“From these authorities, this court concludes that California’s traditional limit of marriage to a union between a man and a woman is not a sufficient rational basis to justice Family Code sections 303 and 308.5,” Kramer wrote. “Simply put, same-sex marriage cannot be prohibited solely because California has always done so before.”

Lavy said Kramer’s use of the case pertaining to interracial marriage bans misses the point.

“In Perez v. Sharp, the California Supreme Court said that the constitutional right to marriage is the right to marry a person of one’s choice,” Lavy said. “When the court said that, it had no idea that its statement would be taken to mean that the state could not continue defining marriage as the union of a man and a woman.

“They would have never dreamed that their case would be construed that way. The decision in Perez was based on the fact that the miscegenation laws were designed to sustain white supremacy.”

Ironically, California’s domestic partnerships law — which gives same-sex couples some of the legal benefits of marriage — may have hurt the state’s case.

“California’s enactment of rights for same-sex couples belies any argument that the state would have a legitimate interest in denying marriage in order to preclude same-sex couples from acquiring some marital right that might somehow be inappropriate for them to have,” Kramer wrote.

Liberty Counsel’s Staver said the legal fight is far from over.

“I think it is ludicrous to say that there is no rational purpose to support marriage as the union of one man and one woman,” Staver said. “I don’t believe that … a single judge with a stroke of a pen can undermine an institution that is fundamental and has been part of every society for millennia of human history.”

The movement to ban same-sex “marriage” has gained momentum in recent weeks, with legislators in Alabama and South Dakota placing marriage amendments before voters in 2006. Kansas voters will consider a marriage amendment April 5. The amendments tie the hands of state courts, preventing Massachusetts-type rulings. But because state amendments are vulnerable in federal court, pro-family leaders support passage of a marriage amendment to the U.S. Constitution.
For more information about the national debate over same-sex “marriage,” visit www.bpnews.net/samesexmarriage.

    About the Author

  • Michael Foust