Wednesday, March 16, 2005


Alert reader Bogus Doug asks:

Hey you law-talking guys -and I know there are some of you out there - question for you: What the f*ck? Sorry. Let me rephrase. What the f*cking, f*ck?!!!

I will try to rephrase Doug's question for the benefit of readers who don't know what he's talking about:

I say old chap, what is with this chuckleheaded judge in California declaring that laws restricting marriage to between one man and one woman unconstitutional? I dare say this judge is quite off his rocker, old bean!

Right you are Doug! He's guilty of fudging.

I've quickly read the opinion, and can offer some thoughts (the case is encaptioned In re: Coordination Proceeding, Special Title [Rule 1550(c) ], Marriage Cases. I can't find a free internet outlet for it, but the Westlaw cite is 2005 WL 583129). First some background:

This ruling invalidated two sections of California's Family Code: section 300, which has a parallel version in every state and states that inter alia, only members of the opposite sex may be married to each other; and section 308.5 which was adopted as a ballot initiative in 1999 (effective in 2000) which states in essence: "Hey, judge Kramer. You know that opposite sex marriage requirement? We really mean it." Kramer invalidated the statutes on an equal protection theory.

Under the California constitution, equal protection claims that involve a "suspect class" are subject to strict scrutiny. Under the strict scrutiny standard, the law in question must serve a compelling state interest and be narrowly tailored to achieve that end. Under this test, the proponent of the law (i.e. the State) has the burden of proving this.

California courts have decided that gender classifications are "suspect" and thus subject to strict scrutiny (in contradistinction to federal constitutional jurisprudence which, recognizing that there are some very real and fundamental differences between men and women, subject gender classifications to a more moderate "intermediate scrutiny").

Here's a pragmatic illustration of the nature of strict scrutiny: attorneys to the parties of such an action read the court's opinion on the matter, and when they get to the part where the court invokes strict scrutiny, they stop reading because they know the law in question is dead. They instead use the time saved by thinking about more important matters like collecting their fees.

But this decision is going to be eviscerated on appeal; most likely by the California Supreme Court, as there's not as many moonbats there as in the Court of Appeals.

Time to get out LearnedFoot's patented Argument Vaporization Ray.

First, let's look at how the court gets this law into the strict scrutiny box:

The idea that California's marriage law does not discriminate upon gender is incorrect. If a person, male or female, wishes to marry, then he or she may do so as long as the intended spouse is of a different gender. It is the gender of the intended spouse that is the sole determining factor. To say that all men and all women are treated the same in that each may not marry someone of the same gender misses the point. The marriage laws establish classifications (same gender vs. Opposite gender) and discriminate based on those gender-based classifications. As such, for the purpose of an equal protection analysis, the legislative scheme creates a gender-based classification.

Nice try. Let's inject some common sense here. The classification isn't about gender at all: it's about sexual preference. Period. The court can obfuscate and twist logic all it wants, saying that the purported gender discrimination lies with the one that the individual wants to marry, not the individual him /herself. Reread that last passage again. The tortured logic (e.g. an individual right attaches to someone other than the individual asserting that right) is the dead giveaway that indicates Judge Kramer was trying really, really hard to get the strict scrutiny standard to apply. He'd have a harder time striking the statutes under the much less rigorous "rational basis" test (party attacking the law has burden of showing that the law is not rationally related to a legitimate government interest - a very accommodating standard for the state), which would presumably otherwise apply. You can tell that's Judge Kramer's angle since he goes to great pains, to persuade us that these sections would also fail the rational basis test, even though he says that, because it's a gender classification, strict scrutiny applies (emphasis mine):

Since neither the parties' arguments nor any other matter properly available to this court demonstrate such a legitimate state interest, this court concludes that under the rational basis test, Family Code sections 300 and 308 .5 violate the equal protection clause of the California Constitution.

If it's so clearly a strict scrutiny case, why does Judge Kramer even bother applying the rational basis test?



Let's address another argument in support of this decision. (Sorry, just one more, I'm running out of time).

The court tries to address the argument that the compelling interest (or a legitimate interest in the rational basis context) the state has in advancing opposite sex marriages while prohibiting same-sex ones, is the procreative nature of marriage and the establishment of the family as the basic social unit:

Under our present opposite-sex only law, marriage is available to heterosexual couples regardless of whether they can or want to procreate. As long as they choose an opposite-sex mate, persons beyond child-bearing age, infertile persons, and those who choose not to have children may marry in California. Persons in each category are allowed to marry even though they do not satisfy any perceived legitimate compelling governmental interest in procreation. Another classification of persons, same-sex couples, also do not satisfy any such perceived interest, yet unlike the other similarly situated classifications of non-child bearers, same-sex couples are singled out to be denied marriage.

OK. I will very tersely pound the shit out of this line of reasoning:

1.) People unwilling to have children at the time of marriage can (and have been known to) change their minds.

2.) Infertility can be (and often is) treated and reversed.

3.) In many contexts the law assumes that old women can bear children (ask me about the rule against perpetuities some time).

4) Other courts have considered these objections (I am recalling this from my bar exam review, if anyone has citations, please help me out) and have decided that given the foregoing, it would be a waste of everybody's time and, a colossal drain on resources to deal with each marriage on a case by case basis.


The court goes on to try and convince us that gay marriage can be procreative:

To be precise, same-sex couples can cause procreation. A female capable of producing children can be married to another female and become pregnant through various methods, then produce and raise the child in her same-sex union. Similarly, a same-sex male couple could cause a female to become pregnant, directly or otherwise, and later adopt and raise the child.

Even the judge must realize that this is a laugher because he put it in a footnote. In order for a monogamous gay marriage to produce children, there must be an affirmative intention to have children. That means that the parties engaging in artificial insemination or adoption would, if in their right minds, wait until they are able to raise a child. Married heterosexual couples can have accidents. And couples qua married couples are already equipped to handle such a situation. That's the whole point of marriage.


So we have a judge who applied the wrong standard of review, supported his opinion with questionable logic and flouted the explicit will of the people. And I haven't even given this decision an exhaustive treatment.

Watch for this one to get vaporized at some level of appeal.

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