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Calif. Judge Backs Same-Sex Marriage

Ban Ruled Unconstitutional; Appeal Likely

By Joe Dignan and Amy Argetsinger
Washington Post Staff Writers
Tuesday, March 15, 2005; Page A08

SAN FRANCISCO, March 14 -- A trial court judge ruled Monday that California's ban on same-sex marriage is unconstitutional, comparing it to archaic laws that once blocked interracial marriage and promoted "separate but equal" segregation.

If upheld on appeal, the decision could lead to California becoming the second state in the nation -- after Massachusetts -- in which gay men and lesbians have the same access to marriage licenses as heterosexual couples.

_____Calif. Gay Marriage_____
For Gay Couples, Anniversary Party (The Washington Post, Feb 13, 2005)
Gay Couples Challenge Calif. Marriage Law (The Washington Post, Dec 23, 2004)
Gay Rights Activists Weigh Tactics of Marriage Push (The Washington Post, Aug 13, 2004)
Fate of Tangible and Intangible Benefits a Concern (The Washington Post, Aug 13, 2004)
The Women's Marriage March (The Washington Post, May 25, 2004)
Calif. Court Won't Halt Gay Marriages (The Washington Post, Feb 28, 2004)
San Francisco Opens Marriage to Gay Couples (The Washington Post, Feb 13, 2004)

Gay rights advocates heralded the ruling as a legal milestone. "Lesbian and gay citizens in California are full individuals entitled to the full dignity of the law for their relationship, for their lives and for their families," said Kate Kendell, head of the National Center for Lesbian Rights in San Francisco.

But she and other advocates agreed with opponents that the ruling probably will move the fight over same-sex marriage from the courts, where most of the California skirmishing has occurred so far, to a new political battlefield.

An effort is already underway to amend the state's constitution to ban same-sex marriage. Robert Tyler, legal counsel for the conservative Alliance Defense Fund, said the ruling also would "essentially put rocket fuel" into the movement to amend the U.S. Constitution.

"The people of America have spoken time and time again," he said, citing California's 2000 ballot initiative that reinforced state laws banning same-sex marriage. "The people will ultimately win one way or another." During last year's election, 11 states approved ballot measures that banned same-sex marriage.

The ruling comes almost exactly a year after San Francisco Mayor Gavin Newsom challenged state law during a month-long period in which he authorized the marriages of more than 4,000 gay couples at City Hall.

The California Supreme Court blocked the city from issuing marriage licenses to same-sex couples and later nullified those unions, saying Newsom's actions violated state laws. Monday's ruling stems from lawsuits brought by the city and a dozen couples challenging the constitutionality of those laws.

In a 27-page ruling, Superior Court Judge Richard A. Kramer said the state would have to prove that it has a compelling interest in denying gay men and lesbians a right afforded to heterosexuals. "It appears," he wrote, "that no rational purpose exists for limiting marriage . . . to opposite-sex partners."

The state attorney general's office had argued that the definition of marriage as a union between a man and a woman was part of "California's traditional understanding" and was deeply rooted in state history. But Kramer noted that the same rationale had been used to defend the old ban on interracial marriage.

"Same sex marriage cannot be prohibited solely because California has always done so before," Kramer wrote.

He also rejected the argument that California's ban did not violate the equal protection rights of gays because of other laws that provide gay couples virtually the same rights that are guaranteed in marriage. In fact, he said, such a policy "cuts against the existence of a rational government interest for denying marriage to same-sex couples."

Kramer noted that opponents had warned that same-sex marriage could open the door to marriage between siblings or involving children. But the judge noted that the case law upholding same-sex marriage "is not saying that therefore anyone can marry anyone else," and that the government would still be able to claim a legitimate interest in blocking incestuous or underage unions.

The ruling was something of a vindication for Newsom, once considered a rising star in Democratic politics, who in recent months has come under criticism that the publicity generated by his City Hall marriages prompted a backlash that helped President Bush defeat Sen. John F. Kerry (D-Mass.) in November.

Newsom joined advocates in a celebratory news conference at the San Francisco courthouse Monday but was careful not to claim victory.

"This is an important day but hardly is this effort complete. Quite to the contrary," he said. "I look forward to that day when we can look back and say, 'What was the big deal, why was this such a controversial thing?' "

Tony Perkins, president of the Washington-based Family Research Council, which is battling same-sex marriage in several states, blasted Kramer's decision as "judicial arrogance."

"You've got one judge that thinks they know better than the 60 percent of Californians that voted" for the 2000 ballot initiative, Perkins said. "It underscores the need to rein in these rascals in robes with a national marriage amendment."

Opponents said they will appeal the ruling, which probably will move to the state Court of Appeals before the California Supreme Court.

Argetsinger reported from Los Angeles.

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