The recent decision by San Francisco Superior Court Judge Richard A. Kramer, that California's ban on same-sex marriage is unconstitutional, seems to smack of judicial activism. (Kramer Opionion, at http://www.sftc.org/Docs/marriage.pdf.) Actually, it is a good example of what can happen when people advance legislation which is based on morality, while at the same time avoiding a discussion of morality.

Many are complaining that in finding no rational basis for the ban, Kramer advances his own subjective view. (E.g., Dennis Prager (3rd hour), The Dennis Prager Show, 15 March 2005.) But this isn't exactly what happened. What happened was that Kramer applied what is known as the "rational basis test", one of two tests for determining whether the equal protection requirement is violated. (The other is "strict scrutiny." Kramer applies both tests.) In applying that test (which we'll get to in a moment), Judge Kramer found that the law (i.e., California Family Code section 300, which states that a marriage is a union of a man and a woman, and section 308.5, which states that only a marriage between a man and a woman is valid) is unconstitutional. The law is unconstitutional because it violates the "equal protection and privacy provisions of the California Constitution." And it violates this protection because it fails both "rational basis" and "strict scrutiny."

Kramer begins his analysis by recognizing that "most legislation creates classifications for one purpose or another, and then differentiates upon the classifications." (Opinion, 3.) (This is an important consideration, since the law in question has to do with the classifying of parties who may and who may not marry, especially on the basis of gender.) Kramer further recognizes that this power "emanates from the police power under the United States Constitution...." But this power must be "reconciled with the equal protect clause, which provides that no person shall be denied equal protection under the law."

Reconciliation of police power with equal protection is "manifested in two tests that depend on the nature of the classification created by the legislation." (Opinion, 4.) The first test concerns legislation which creates classifications but does not "implicate fundamental rights." Here, the legislative act is presumed to be valid "as long as there exists a rational relationship between the disparity of treatment and some legitimate government purpose." And the burden is on the one who challenges the legislation. This is the "rational basis test." And this is the test Kramer asserts that the Family Code fails. The second test, "strict scrutiny," involves legislation which does implicate fundamental human rights or which create "suspect" classifications. On this test, the burden is upon the state, not the challenger, to demontrate both that a compelling state interest justifies the law and that the classifications created by the law are necessary. (Opinion, 5.)

It was disputed which of these tests ought to apply, but in the end it didn't matter. After stating that the strict scrutiny test applied to the case, Kramer said that Family Code sections 300 and 305.8 failed both tests.

How does the California law fail the rational basis test? In looking into the matter, courts look into "the correspondence between the classification [i.e., created by the law] and the legislative goals." (Opinion, 5.) We know what are the classifications involved (i.e., man, woman, same-sex, opposite sex, etc). What are the legislative goals?

The state offered two arguments supporting the law: (1) "opposite-sex marriage is deelply rooted in [California's] history, culture, tradition and...courts should not redefine marriage to be what it has never been before." (Opinion, 6); (2) "California has granted to same-sex couples virtually all of the rights that marriage entails." (Opinion, 8.) Quite frankly, one is hard-pressed to see how these two arguments, even if sound, constitute a statement of the purposes of the legislation.

To this first argument, Kramer replied that tradition alone cannot constitutionally justify a law. The argument just fails to explain the legitimate governmental purpose for the law. (Opinion, 8.) Now, much as I disagree with same-sex marriage, I find it difficult not to agree with Kramer here. (He'd be so proud to know that, I'm sure.) When someone asks you the purpose behind something, "Tradition" just isn't an answer. An answer might explain why something is a tradition, but tradition doesn't explain why. And to the second argument, he said it sounded like the old "separate but equal" doctrine that the Supreme Court rejected in Brown v. Board of Education of Topeka, et al.. (347 U.S. 483 [1952]) (Opinion, 9.)

So, when Judge Kramer, asserted that "it appears that no rational purpose exists for limiting marriage in this State to opposite-sex partners," (Opinion, 6) he was not talking about "rational" as if the term meant "makes sense to me, Judge Kramer." It seems clear that, when asked for one, the State offered no explanation of legislative purpose. When a judge asks for a statement of purpose behind a legislative act and doesn't get one, what else can he conclude but that the State does not have a purpose that it can articulate? And if one is looking at the rational basis test, and a statement of legislative purpose is missing, what else can one conclude about the relation between an act and a legislative purpose but that there is no relation between the act and some purpose?

There is one thing though. It doesn't look, upon reading Kramer's opinion, as if challengers had to work all that hard at making their case. Despite his acknowledgment that the challengers had the burden, the only arguments he reviews are the state's arguments in defense of the Family Code sections 300 and 308.5. Legal minds will know better, of course, but it just seems like he gave only lip service to the rule that challengers had the burden. It certainly looks for all the world as if all a challenger has to do to meet his burden (at least in Kramer's court!) under the rational basis test, is assert that no rational relation exists between a law he challenges and some legislative intent.

How does the California law fail strict scrutiny? Recall that strict scrutiny is the test applied when legislation creates a "suspect" class (nothing subjective there!) or implicates a fundamental human right. (Opinion, 16.) According to Kramer, California Family Code sections 300 and 308.5, do precisely these two things. First, the Code discriminates on the basis of gender. "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." (Opinion, 17.) Now, the state responded to this by saying that the law doesn't discriminate because it applies to both males and females in prohibiting them from marrying members of the same sex. Kramer pointed out that this was the same sort of logic used in miscegenation legislation once upon a time (i.e., that miscengenation does not discriminate because it applies to both blacks and whites).

Oh, and Kramer also noted that the Code implicated a fundamental human right: the right to marry. (Opinion, 19.)

As I've already pointed out, I am no lawyer. But given what seems to be the applicable law and the way that the lines of the debate have been drawn, Kramer, I think, could have done little else even had he wanted to. The only valid argument for prohibiting same-sex marriage is the religious-moral one. The One who created them male and female did, in creating, define them and set limits to--among other things--their sexual behavior. One of those limits is the prohibition of sexual intercourse between members of the same sex. Apart from that concern, there isn't much in the way of argument that proponents of same-sex marriage cannot overcome.

It seems to me that one of the basic issues in this matter is, In a constitutional republic, can a majority of the people of a state give to their values the force of law? Can this be a legitimage legislative purpose? The short answer is: Yes. (All laws are little more than a reflection of a society's values, wherever those values may come from.) But the expanded answer is: Yes, so long as the majority do not trample the constitutional rights of the minority. So the question is: Is there a constitutional right to marry? Frankly, I don't see anything in the Constitution which would forbid a state outlawing marriage period. (I'm an originalist. That means that I also don't think, for example, that the Constitution would prohibit a state from executing a seven year old for a capital crime. I think it would be wrong; and so I would try to pursuade my fellow citizens. But it would not be unconstitutional.) Now, I doubt any state would be foolish enough to outlaw marriage; but I don't think the Constitution prohibits it. The problem with Constitutional exegesis these days is that most people tend to think that the Constitution--somehow--protects everything we deem worthy of protection (e.g., marriage) and prohibits everything we don't think worthy of protection (e.g., laws against abortion). All it does is create a system of government in which the values of a majority are given expression in the laws, without exterminating those in the minority who do not share the majority's values. Should those values change over time so will the laws enacted by the government under the Constitution, without the Constitution needing to undergo much change. But ultimately the Constitution will not protect the minority from a lawless majority; nor will it protect the majority from a lawless minority. This is especially the case when the lawless are finding rights which are "implied" by "penumbras" of other rights.

Be all this as it may, Kramer really isn't the problem. He is a lower court judge, duty bound to abide by the decisions of higher courts. Those higher courts have created the two tests he applied. The real problem is the whole notion of judicial review. That is where the power behind "judicial tyranny" is. But I've already blogged about that.

Having said that Kramer isn't the problem, it will be interesting to see what happens when this is appealed. That is to say, it will be interesting to see what reasoning is given for over-turning Kramer--if he is over-turned. I'd like to see Kramer over-turned on this just because I don't believe in same-sex marriage. I think it will still come to the rational basis test and the strict scrutiny test and whether Kramer erred in his application of the two.