More Gay Marriage Legislation From the Bench


According to AP, “San Francisco County Superior Court Judge Richard Kramer said that withholding marriage licenses from gays and lesbians is unconstitutional.”

Kramer wrote:

“It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners,”

that the state’s historical definition of marriage, by itself, cannot justify the denial of equal protection for gays and lesbians.

“The state’s protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional,”

Obviously this case will be appealed to the California Supreme Court. However, there are also bills pending in the CA Legislature that would put a constitutional amendment banning same-sex marriage on the November ballot. Frankly, this is where it should be decided, the voters. It is far time that the electorate be allowed to vote on this issue instead of unelected men and women in black.

This issue should be removed from the hands of the liberal California Courts and given the voters decide for themselves. On November 2, 2004 eleven states were provided this same opportunity and all voted against same sex marriages. Different states in the US have different provisions afforded to gay couples when it comes to marriage or civil union. Legislation from the bench must stop, let the people be heard.

Update: On March 7, 2000 Californian’s overwhelmingly voted for Proposition 22, known as the “California Defense of Marriage Act, 308.5 the Family Code.”

Proposition 22 was ratified by an overwhelming majority of California voters, prevailing by a 23-point margin. Statewide, 4,618,673 votes were cast in favor of the proposition, comprising 61.4% of the total vote. Opponents garnered 2,909,370 votes, for 38.6% of the vote. The test of the proposed law can be found here.

The people of California have already spoke and said, “”Only marriage between a man and a woman is valid or recognized in California.” What is most interesting is that some opponents to proposition 22 had stated that, it was unnecessary for government interference since the measure does not ban same-sex marriages in California and that it was already banned by current law.

Thus in California, we have a proposition that was passed when an existing law was already in place, whereas a Judge has reversed the ruling of a lower court to make ban’s on gay marriage unconstitutional. Meanwhile bills are in the State Legislature to create an amendment baning same sex marriage. Sound confusing?

It has been said that America was not ready for a Constitutional Amendment to ban same sex marriage, but it is obvious from the actions of the Courts in not listening to the will of the people that this is what needs to be done.

And more found at Wizbang and OTB. And an interesting take at The Jawa Report

Posted March 14, 2005 by
Main | 10 comments

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  • Comments

    10 Responses to “More Gay Marriage Legislation From the Bench”

    1. Karl Maher on March 14th, 2005 7:04 pm

      These chickens haven’t hatched yet. The California Supreme Court has what Eugene Volokh terms a “moderately conservative” judicial philosophy. And that’s no accident.

    2. smijer on March 15th, 2005 10:57 am

      It seems the judge referred back to anti miscegnation laws that were overturned by the Supreme Court in 48. Weren’t they approved by a majority of people, too? Damn the Supreme Court for legislating from the bench. If people had wanted equal protection for all under the law, including minorities, regardless of what the “majority” of people at one moment in history thought, they would have ratified the 14th amendment.

    3. Red on March 15th, 2005 12:53 pm


      What other definitions don’t you agree with? Cat? How about Will of the people?

      This issue of Gay Marriage is going known the path of unintended circumstances for the LEFT. Am I for civil unions and for equal contractually equivalence, but do not call it marriage.

      The LEFT once again is going to overplay their hand and demand something that will ultimately wind up with a Constitutional Amendment. Please do not insult the Civil Rights movment in this country with gay marriage. That also is a sure loser.

    4. smijer on March 15th, 2005 1:55 pm

      How about Will of the people?

      Good question. How do you define “will of the people”? If such a term is to have meaning, it could only apply to something about which everyone agreed. If you just mean the will of the “majority”, then that’s fine, so long as it is done with proper constitutional respect of the rights of the minority. See my post here.

      Am I for civil unions and for equal contractually equivalence, but do not call it marriage.

      Names are for dictionaries. The same law should cover everyone or no-one. If the law uses the term “marriage”, then that’s what should apply to everyone. If you don’t want the term “marriage” to apply, then change the law so that everybody gets “civil unions”. No matter what you do under the law, there will be people who call themselves “married” and there will be churches that recognize those marriages. No one is telling your church whom it has to marry, or whose marriages it has to recognize (although I think there is something called a Golden Rule which you might find applicable).

    5. Embrace the Meltdown on March 15th, 2005 3:18 pm

      Will of the people? Why did we ammend the constitution to give women the right to vote? Equal protection existed then, right? Why did folks not just take the issue to the supreme court.

      Y’all know that is what would happen now. Fact of the matter is that the left needs to be taken out at the knees. It all starts with the judges.

    6. Mrs. Red on March 15th, 2005 3:23 pm

      As for the California miscengnation laws, they covered more than just black/white couples. They also discriminated against Asian/white & black/white couplesand weren’t repealed until the late 1960′s after Loving v. Virginia (sorry I can’t underline).

      As for the whole “gay marriage” argument. Get over it!! The gay people in this country demanding this “right” align themselves with the same people that constantly denouce religion or any mention of the word God or anything associated with God, for example, the word “Christmas” during the Christmas season , and now Easter out of the Easter Bunny.

      For the majority of people marriage is still a religious ceremony, hence if one wants to always side against religion then stay out of it [religion]! Most of the people that disagree with this idea of “gay marriage” do so because for us it’s a part of the sacraments handed to us through – RELIGION – and the gay couples along with the activist judges constantly side with the aethist contingent in this country. Which is not to say that I don’t know gay religious people, I do, it is just that stringent, stident, very vocal anti-any form of religion segment of the population seems to be alligned with the very anti-God contingency.

      As for civil unions, why not? It would give the same rights as marriage and seems to work well in Vermont, where incidentially the population would love to repeal that.

      One last thought, smijer, you made the case about protecting marriage when you stated it should be all civil unions and no marriage. Isn’t that really the agenda??

    7. smijer on March 15th, 2005 5:51 pm

      Embrace – yes .. take out the judges, then the legislative and executive branch can do whatever they like with no further checks or balances on their power. If that’s what you want. Personally, I’m glad that we have courts to keep the lawmakers honest. By the way, why is it that the only people whose “will” matters are the ones that aren’t affected by the law?

      Mrs. Red…
      If you and Mr. Red want civil unions instead of marriage from the state (and really – that’s what we’re talking about… civil marriage, the state doesn’t do religious marriages and has no say in what religious people choose to recognize as marriage in a religious way), then yes.. that’s the agenda civil unions instead of civil marriage. If not, then the agenda is to get for others couples the same thing you and Mr. Red have: civil marriage. By the way – I am one of those people who don’t want the state involved in the religion business (or vice-versa). I think those who have their rights most often trampled on by the laws and government are the ones that are most sensitive to government abuses in other areas… and that’s probably one of the reasons you see the alliance between those who don’t want people’s ideas about God incorporated into the courthouse decor for religious purposes and those who want equal rights for gay people.

    8. JPL on March 15th, 2005 9:46 pm


      Do you really see no difference that the law should recognize between opposite-sex and same-sex “marriage”? I mean, do you really believe that? Because if you do, then please advise: In addition to believing that courts should redefine “marriage” to include same-sex unions, do you also believe they should abolish all state laws that give opposite-sex married couples automatic parental rights over their own biological offspring?

      The reason I ask is that for married couples, parental rights over their biological offspring arise automatically, without the need for governmental intervention. But for same-sex married couples, it’s impossible for both partners to be the biological parents of the same child, so if they want a child, they have to adopt one born to other parents (or, if one of the same-sex spouses is a biological parent of the child, then the same-sex spouse who isn’t a biological parent has to adopt the child).

      Adoption procedures vary from state to state, but I think it is safe to say that they are UNIVERSALLY (a) expensive, (b) slow and time-consuming, (c) dependent on the state’s requirements for adoption, and (d) dependent on the couple’s ability to prove to a judge’s satisfaction that they will be fit parents. The burden of adoption is so great that requiring same-sex married couples to go through it in order to have children of their own will be an obvious inequality between same-sex vs. opposite-sex married couples. And as the courts impose same-sex marriage on the states, I assure you that some day a same-sex married couple will complain to a court that it is unfair and discriminatory to require them to go through adoption, and that they should get the same “presumption of parenthood” that opposite-sex spouses get.

      So, what do you say, Smijer? Is there a rational basis for awarding parental rights in the first instance to biological parents? If so, does the unequal treatment of same-sex married couples arise from biology, or from a “heterosexist prejudice”? Should we require same-sex spouses to go through the inconvenience of adoption proceedings if they want children, when opposite-sex partners have parental rights through simple procreation? Won’t this be unfair to same-sex married couples, since it’s through no fault of their own that they can’t procreate? In which case, shouldn’t courts rule that all state laws granting parental rights to biological parents are unconstitutional, and require opposite-sex married couples to adopt their own biological children, just like same-sex spouses?

      More fundamentally, are these decisions we should let courts decide? I say no, that such questions should be decided solely by legislative process. That is why I favor a federal constitutional amendment that would expressly remove from the judiciary the power to require recognition of same-sex marriages or civil unions, except pursuant to state legislation that expressly grants such a right. Such an amendment would prohibit judicial overreaching on the same-sex marriage/civil union issue, while preserving the state legislatures’ power to craft state-by-state solutions.

      But to finally get back to my original question, Smijer, do you really believe there are no difference that the law should recognize between opposite-sex and same-sex “marriages”? Becuase if you do, then I think inevitably you are in favor of abolishing all laws automatically granting married couples parental rights over their offspring. And if you APPROVE of laws giving married couples parental rights over their offspring, then I think it’s because deep down inside you understand there’s a profound difference between same-sex and opposite-sex “marriage”.

    9. smijer on March 16th, 2005 7:55 am

      JPL, take this as a compliment or a criticism as you like, but I believe this is the first time I’ve seen anyone dig as deeply as you apparently have to find new reasoning to support the anti-marriage viewpoint that cannot otherwise be defended. Your new reasoning is rather a red-herring, because the real, “profound” difference that is rightfully encoded in law concerning parenthood is not the difference between gay and straight marriage – it is the difference between biological and adoptive parenthood. The fact is that presumption of parenthood exists for unmarried couples as well as married ones. The equal protection argument would have to be made that adoptive parents, generally are not equally protected by a set of laws that allows presumption of parenthood to biological parents… it has nothing to do with “same-sex” vs “opposite-sex”. Furthermore, there are good, non-arbitrary reasons to presume parenthood for biological parents and to require adoptive parents to take their turn in line and to show fitness for parenthood. I feel like you are clever enough to figure out what those non-arbitrary reasons are.

      Incidentally, I am in a heterosexual marriage, where my wife and I were in exactly the same situation when we were married as that homosexual couple. We knew that we could not bear biological children. So far, there have been no clamours to have our marriage annulled, or to make it illegal for people like us to be forbidden marriage. Are we next on your hit list, or is the difference between those who can and cannot procreate biologically less “profound” in terms of arguments of equal protection in marriage laws than you make it out to be?

      Finally, you seem very concerned about “judicial” overreach in enforcing equal protection in the marriage laws. Do you have any concerns about legislative overreach? Is it a good precedent for the majority to amend the constitution each time a judge blocks a law they are using to discriminate against a minority? Would you have the judiciary and the constitutional protections they enforce neutered this way, knowing that demographics change, popular sentiment changes, and that some day you or your family may find itself in a reviled minority?

    10. Mrs. Red on March 17th, 2005 1:59 pm

      Are you intentionally being obtuse? Please re-read what I said. As for why most people consider marriage a religious sacrament, could it be becuase even among those that don’t attend church they are usually married by a religious officant? A preist, rabbi or minister – sorry but that does not conotate civil to me. Are you saying that once you have your way no one can be married in a church by a religous offical because that would involve God in state matters? If what we have is a “civil marriage” then what is wrong with “civil unions”?

      As for the part about removing religion – did you even read my post? I did NOT mention the Ten Commandments, that is something altogether different – although, of course, I don’t mind them – What I did talk about is the removal of the word Christmas and Easter. Those two references HAVE NOTHING TO DO WITH GOVERNMENT!

      And as a further illistration of my point, Congress is now putting forth a bill that will protect the rights of boyscouts to meet in National Parks or any federally funded area – HUMMMMMM – which was never an issue until they refused to agree to gay scoutmasters. Then all of the sudden every 5 minutes there was a lawsuit to keep this group from using any National Parks. What about the rights of the kids? OH, I see they don’t agree, believe in God so THEY don’t have any? So much for your “separation” – it’s selective!

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