Tuesday, March 15, 2005

Kramer: Terse Master

In San Francisco, Supreme Court Judge Richard A. Kramer is the justice charged with complex litigation. His March 14th decision on same-sex marriage is nothing if not complex. Yet he managed to deal with the issues in six related cases in a mere 27-page decision. It is a near masterpiece of condensation.

He first reduced the gist of each case to how they hinge on Family Code 300 and 308.5. The former provides that a wedding is between a man and a woman. The latter refuses to recognize marriages solemnized elsewhere between same-sex couples. The question common to the six cases is whether either of these laws violates the California constitution.

His decision is available online. It is a PDF file and requires Adobe Acrobat or a compatible reader.

Kramer, a Catholic and Republican, very finely shredded the con arguments. So the California Supreme Court will have clear issues before it.

More clearly than similar decisions in Massachusetts and New York, he took head on the subject of traditional definition of marriage as between a man and a woman. He started by noting that current California law embodies that understanding. “This argument is that opposite-sex marriage is deeply rooted in our state’s history, culture and tradition and that the courts should not redefine marriage to be what it has never been before,” as his decision puts it.

He points out where some traditions become law for good reason, citing holidays, driving on the right-hand side of the road, and common-law jurisprudence.

However, he also draws on the 1948 Perez v. Sharp decision that overturned the traditional ban on interracial marriage in his state. Cons hate such comparisons, but Kramer writes on in some detail about how in that case the court cut through the jive about tradition and about how it applied its taboo equally to blacks and whites. He cites the Perez ruling as including “(c) ertainly the fact alone that the discrimination has been sanctioned by the state for many years does not supply such (constitutional) justification.”

As in Perez, the current cases failed to show a legitimate state interest in forbidding same-sex marriages. Kramer noted that the aim seemed to be to discriminate on gender. Likewise, to the argument that California had created a separate but equal set of health and tax benefits, he concluded that “the creation of a superstructure of marriage-like benefits for same-sex couples is no remedy” for ignoring the state laws forbidding gender discrimination.

His next punch line was that “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.” That’s heady stuff, which may find its way into the national debate and future decisions.

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