Court Rules Against California Ban on Gay Marriage

California joins the list of states where gay marriage has been enacted by judicial fiat rather than the democratic process.

ABC News: Court Rules Against California Ban on Gay Marriage (Reuters)

A California Superior Court judge ruled on Monday that the state’s ban on gay marriage is unconstitutional. The ruling stemmed from litigation over San Francisco’s decision last year to allow gay marriage. Those weddings were ruled invalid by the California Supreme Court, but the top court asked a lower court to consider the broader issue. “We’re gratified by today’s ruling,” said San Francisco City Attorney Dennis Herrera. He added it was an important step toward establishing equal rights for gays in California.

California judge backs gay unions (BBC)

A judge in California has ruled that the state’s ban on gay marriage is unconstitutional. San Francisco Superior Court Judge Richard Kramer said the state could no longer justify limiting marriage to a man and a woman.

California reaches major marriage milestone (The Advocate)

A judge ruled Monday that California can no longer justify limiting marriage to the union of one man and one woman, a legal milestone that, if upheld on appeal, would pave the way for the nation’s most populous state to follow Massachusetts in allowing same-sex couples to wed.

In an opinion that had been awaited because of San Francisco’s historical role as a gay rights battleground, San Francisco County superior court judge Richard Kramer said that withholding marriage licenses from same-sex couples is unconstitutional. “It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners,” Kramer wrote.

The judge wrote that the state’s historical definition of marriage, by itself, cannot justify the unconstitutional denial of equal protection for gays and lesbians and their right to marry. “The state’s protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional,” Kramer wrote.

Judge strikes down California gay marriage ban (AP) (MSNBC, CNN, YahooNews)

A judge ruled Monday that California can no longer justify limiting marriage to a man and a woman, a legal milestone that if upheld on appeal would pave the way for the nation’s most populous state to follow Massachusetts in allowing same-sex couples to wed. [….] “It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners,†Kramer wrote.


Meanwhile, a pair of bills pending before the California Legislature would put a constitutional amendment banning same-sex marriage on the November ballot. If California voters follow the 13 other states that approved such amendments last year, that would put the issue out of the control of lawmakers and the courts

It’s a shame for this issue to become fodder for constitutional amendments, whether state or federal, as it will require supermajorities to overturn them should, as I believe inevitable, the public tide shift on the issue. Given that judges are overstepping their bounds and imposing their policy preferences, though, it appears the only recourse that the public has.

See also NYT

Update (1728): Christian News (via GoogleNews) entitles their piece California Judge Rules Against Ban on Gay “Marriage.” The scare quotes around “Marriage,” a practice also employed by the Washington Times, never fails to amuse me in its heavyhanded silliness.

Update (1748): Michael Demmons links a poorly scanned PDF of the opinion at FindLaw. He accuses me, along with Rusty Shackleford, of being “social conservatives.” I find this amusing, since I’ve repeatedly defended the idea of gay marriage on libertarian grounds. My belief that public policy should be made through legitimate processes simply trumps having my preferred outcome prevail.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Just Me says:

    I think on this issue it is a mistake for the judicial branch to take the debates out of the hands of the people and the legislatures.

    But this decision in California isn’t surprising, after all, those judges are probably bothered that Massachussette’s and to an extent Vermont beat them to it.

  2. Michael says:

    Or, the Superior court could have accurately interpreted the constitution of the state of California. I mean, I know James thinks that the court is in place to do whatever social conservatives think is the right thing, but maybe, just maybe, they interpreted the constitution correctly – which is what they are there to do.

    But I guess that is nitpicking, because when it’s a decision you don’t like, all bets are off, I suppose.

  3. JohnPaul Valdez says:

    Civil unions are the only state sanctioned bond that should be allowed under the law. Religious ceremonies, including baptisms, barmitsvas(sp?), and religious marriage ceremonies have no place in our government. Those activities belong in the church of one’s choice as has always been the case.
    Again, it has long been the choice of many couples to join under a civil ceremony followed by a religious ceremony of their choosing. That is correct. Opposite sex couples are allowed to marry regardless of whether or not they procreate, and people are allowed to procreate, adopt and have surrogate children without marriage. That is correct too. And all us adults are taxed and should have access to all the services of our government equally. Simple.

  4. Jason says:

    Judicial fiat does not exist. You are misinterpretting the role of the judicial branch. Occaisonally, unconstitutional laws are passed. The role of the judicial branch is to decide if a law is unconstitutional or not. All that this court has done is fulfill its duty.

    There is a reason that judges are not elected. It is to provide a balance against those who are elected. Elections are relatively frequent, in terms of the political lifespan of a nation. Trends and fads may come or go. Judges must be outside of politics so that they can do their job. If judges were elected, they would be beholden to the people who elected them. This would mean that there was no objective branch of government.

    Let the courts do their job. This is like complaining that the judge ruled against you on a parking violation – it isn’t politics, it is just the laws of the country being upheld.

    There is no such thing as an activist judge.

  5. Scott Dillard says:

    I didn’t want this to happen. We had Domestic Partnerships here as of Jan 1, and that was passed by the Legislature and signed by Schwarzenegger. Even if you don’t agree with it, at least it was passed by lawmakers. Imposing gay marriage on California, or anywhere else, just makes people feel shut out of the process. I would expect this will be appealed to the state supreme court level. And I would expect some on the right will try to ballot method to get rid of it.

  6. Carlos says:

    I don’t know what planet Jason has been spending the last half-century on, but judicial fiat does exist, and has existed throughout our history. It has only been in the last half-century or so that it has gotten out of hand, where law is now legislated on the bench in clear violation of the Constitution and most state constitutions.

    Issues such as gay marriage and right-to-bear properly belong in the legislature. If the laws passed by legislatures do not pass muster, they should be struck down, but the bench at that point should properly be through with that particular question.

    As it is, the various benches then exceed their proper authority and tell the public what the law REALLY means, and that exceeds their authority.

    Am I conservative and upset by this ruling? You bet, but only on the above basis, not because I think the judge was out of line ruling in favor of gay marriage. My point is, he should have struck down the law, then left it to the legislature to comply with the state constitution.

  7. RE Gardner says:

    I am deeply conflicted over this issue, mostly because of semantics over the religious versus civil bonds versus civil unions between two people. Rev Donald Sensing has many posts on this a couple of years ago, where he questions the religious establishments’ jurisdiction over a legal function, saying instead the church’s emphasis should be on keeping couples (families) together (apologies if I have misstated his opine, but that is how I read it).

    Simply, I am in favor of “whatever” that allows the legal rights similar to what is today granted by marriage between any two individuals, not to include the obvious exclusions such as incest. It can be a 1950s’ supposed norm, or a “Harold and Maude” situation, or Harold and James (Maude and Jane). Now, I do not support anything requiring any religious recognition of such a union. Nor do I accept anything beyond two people (so that nixes the polygamy argument).

    I am aghast at what some of the proposed state amendments could do as well. Some of them would prohibit two elderly “cohabitating” people of the same sex (let us say two widows in their 90s, whose husbands’ died in their 80s, who are living together for support) from willing the other anything significant like the house they share because they are obviously homosexuals (Instead, the third cousins get the property). Too often the bigots try to do clever workarounds, and end up with unintended consequences (In VA, one Delegate’s proposal against male gays would also discriminate against any military veteran who had served in Europe, or any pregnant woman’s boyfriend).

    As for California, I have an old copy of the state’s Constitution from ~ 1970. It looks like the proposed EU Constitution, a book, not a document (over 1 inch thick). I much prefer the simplicity of the USA Constitution. I think you can find anything you want in this book. I hope that 50 years from now this era will be seen as the age where the judicial branch had too much power (or we had too many lawyers stirring the pot). We are getting too many social decisions by judicial decree, rather from the legislature.

  8. AnjinSan says:

    Guess we should bring back segragation, whites only bathrooms etc. Can’t have the courts “overstepping” or “making policy”.

  9. JohnG says:

    With the margins that this now unconstitutional law passed, the only thing that this insured is that next year it won’t be unconsitutional – it will simply be part of the California constitution

  10. LJD says:

    Let gays get the benefits they want, and pay the marriage tax, through civil unions.
    If a private church (Elvis) wants to “marry” them, let them. Just don’t come into my church and try to force them to do the ceremony.
    We should segregate bathrooms for Anjin-San and not Anjin-San.

  11. Davn8r says:

    RE Gardner’s post was spot on.

    A couple points:

    1) Gay marraige rights have nothing to do with religion. Marriage (while admittedly a religious event to many) is also a legal entity – the government made it so the second that laws were passed granting rights specifically to individuals that were ‘legally’ married (income tax laws, estate laws, medical consent, etc. are a few that spring to mind). To deny these legal rights to individuals based on their sexual orientation is paramount to denying individuals to form corporations based on their race. Would we be having this debate if say, blacks were barred from forming corporations? I certainly hope not.

    2) It is the responsibility of the judicial system to decide on the constitutionality of any law. Period. That is the function of the judiciary branch of the California government. On many occasions in the past, ballot measures that were approved by the voters in November have been struck down by the courts – and rightly so. Let’s not forgot that a good number of what are currently referred to as ‘red states’ voted to uphold slavery in the past so we can concede (I hope) that simply because more than half of a given populace votes in favor of something does not automatiucally make it right or even legal.

  12. James Joyner says:

    Davn8r: Slavery was, of course, legal during the time when we had it. It was not only permitted but SPECIFICALLY ENSHRINED in the original Constitution. Remember the 3/5 Compromise? The moritorium on restricting the slave trade? Only after the passage of the 13th Amendment did slavery become unconstitutional.

  13. Davn8r says:

    Exactly. (my reference to slavery was in support of the concept that majority approval does not make something right)And gay marriage is legal under the California constitution – or more exactly, denying marriage based on sexual preference is explitly illegal under the California constitution:

    Article I, Section 7, subdivision (a) of the California Constitution provides that “[a] person may not be . . . denied equal protection of the laws.”

  14. James Joyner says:

    Davn8r: A passage which has never, since it was written in 1849 until yesterday, been interpreted to confer on men the right to marry other men.

  15. Davn8r says:

    James: Again to my point – does that make it any more legal or right?

    Remember it’s interpretation regarding same sex marriages was never CONSIDERED until recently so the fact that nobody asked the question for 150 years does not in any way make it less applicable.

    To put it another way – for 150 years no one iterpreted it as NOT applying to same sex marriages. So the argumanet goes both ways.

  16. James Joyner says:

    Davn8r: I’m not arguing as to whether it’s “right.” Indeed, my argument is that that particular judgment is properly assigned to the legislature.

    The fact that nobody interpreted it could mean “gays have a right to marry” until recently rather makes my point. The provision is part of the original 1849 Constitution of California. The law limiting marriage to members of the opposite sex has been around since time immemorial. Clearly, therefore, it doesn’t violate the 1849 Constitution.

    That doesn’t preclude it being wrong, of course. But the people can always change it if it’s a matter for legislation. The people have no voice if it’s a matter for judicial fiat.

  17. Davn8r says:

    James: “The law limiting marriage to members of the opposite sex has been around since time immemorial.”

    What law are you referring to?

    Do you not agree that the judicial system was instituted to interpret the legality and definitions of our laws?

  18. There does appear to be a reason within the CA constitution for this, but no one’s using it. The CA constitution prohibits discrimination based on sex. It’s what would have happened had the ERA passed on the national level. Therefore, preventing women from marrying women simply because they’re women, while men can do so, is sex discrimination. Preventing men from marrying men simply because they’re men, while women can do so, is sex discrimination. That’s not the justification gay rights advocates want (which is why no one is talking about this much), but it seems legally required by ERA-type language in the CA constitution.

  19. Davn8r says:

    California law actually prohibits discrimination against any ‘class’ of citizen. Homosexual individuals are already recognized by the state of California as a ‘class’ of citizen. The judge ruled that, under the law, homosexual couples also constitute a ‘class’ of citizen and therefore are afforded equal protection under the law.

    More to the point – heterosexuals are afforded specific legal rights and financial opportunities from the state of California that are not currently being extended to gays. Specifically concerning (among other things) community property laws, income tax incentives, estate receipts, medical treatment authority, etc.

    It is as illegal to deny these things to someone based on sexual orientation as it is to deny it based on any other ground – ethnicity, religion, hair color, etc.

    My question is this:

    assuming that you are opposed to legal gay marriages, how would you propose to ammend this conflict with the CA constitution – or do you agree that such a conflict exists?