Judge: California can't ban same-sex marriage
 

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Judge Says Calif. Can't Ban Gay Marriage
1 hour, 29 minutes ago
By LISA LEFF, Associated Press Writer

SAN FRANCISCO - A judge ruled Monday that California's ban on gay marriage is unconstitutional — a legal milestone that, if upheld on appeal, would open the way for the most populous state to follow Massachusetts in allowing same-sex couples to wed.

Judge Richard Kramer of San Francisco County's trial-level Superior Court likened the ban to laws requiring racial segregation in schools, and said there appears to be "no rational purpose" for denying marriage to gay couples.

The ruling came in response to lawsuits filed by the city of San Francisco and a dozen gay couples a year ago after the California Supreme Court halted a four-week same-sex marriage spree started by Mayor Gavin Newsom.

The opinion had been eagerly awaited because of San Francisco's historical role as a gay rights battleground.

Gay marriage supporters hailed the ruling as a historic development akin to the 1948 state Supreme Court decision that made California the first state to legalize interracial marriage.

"Today's ruling is an important step toward a more fair and just California that rejects discrimination and affirms family values for all California families," San Francisco City Attorney Dennis Herrera said.

Conservative leaders expressed outrage at the ruling and vowed to appeal.

since when does a trial court judge get to rewrite the law?

1st step of series to Supreme Court. From here to an appeals court then on to Supreme Court. All cases start at lowest level of system they're filed in (state/fed).

As for judges determining the constitutionality of laws (not "rewriting"): it's been going on for 200 years. Plessy v. Ferguson, Brown v. Board.. etc.

The trial court judge isn't rewriting the law. No judge can do that. All he has done was find the current law as written inconsistent with the California state constitution. Of course this is appealable; and is being appealed by the State. The appellate courts can then decide to uphold or overturn the trial court judge's finding of unconstitutionality.

Considering the polemic nature of the case, it will undoubtedly find itself before the California Supreme Court, which will render the final ruling of the constitutionality of this particular law as written. All that notwithstanding, the courts cannot rewrite the law...not even the California Supreme Court.

In matters of constitutionality (equal protection, due process, coherence with codified principles, etc.), the most the courts can do is either a) declare a law unconstitutional and urge the legislature to write a new law, the terms of which ultimately would be drafted by the legislature not the courts; or b) require the executive to modify its enforcement of the current law in a way that does not offend the constitution of that particular state. Both options give considerable choice to the legislative or executive branches respectively as to how to modify their actions so as to be consistent with the judiciary's ruling.

You're half correct, judges do determine the constitutionality of the law, but not trial judges. They enforce the law as it stands. It's up to the appellate courts to review lower court decisions and law and determine if they are constitutional or not. This was a trial court judge making a bold statement (well it's california, so it's normal) but this is just not the way it's been done for over 200 years.

As for the first step to the supreme court, it must be a federal matter to reach the U.S. Supreme Court. If a case is only on state law and state matters, it never gets to the U.S. Supreme Court.

California Supreme Court, sorry for the confusion.

I can't believe in this day in age, so many people are opposed to gay marriage. I'm just interested in what kind of reasons people are giving for being opposed to gay marriage. Other than it being immoral, because morals are just opinions, and I think its sad that people still think that their opinions can stop justice. Life Liberty and the Pursuit of Happiness.

who's opposed to gay marriage? Oh you mean our government... Well that's what we voted for so maybe it's time to reason with the majority instead of condemning them all for believing in something different.

Our govm'ts mandate via the constitution is not just to reason with the majority but to protect the rights of the minority.

When did we vote as a nation to ban gay marrage?

Again.... If it werent for the actions of the courts, blacks would still be sitting at the back of the bus.

Those pesky judges rewriting laws...... When will they learn?

As far as I can tell, the reality of the gay marriage issue is that the real split comes in a quasi-Federalist argument of whether it is a state or federal issue. In reality, it's both - each state can mandate marriage as it sees fit, but the federal government does have provisions to recognize marriages between states for purposes of taxation and other 'rights' such as medical care. (I've already posted my diatribe on this situation, so I'll leave it here)

I do agree with the mandate to protect the rights of the minority, but you run into a sticky situation here, in that the minority doesn't have the rights that you're trying to protect. In fact, the 'majority' would have to extend these rights - and majority rule still carries the day in our representative democratic system. You had a nationwide vote when you elected those leaders.

Again, while you're getting trite here, it's important to emphasize the importance of judicial review to our system of checks and balances. Personally, I think that the Federal Supreme Court doesn't want to touch this issue - you'll see some interesting rulings from the state courts along the way, though, just like this one, which you'll recognize as not exactly following the normal process of review.

This is definitely not a perfect system - in fact, in many states I would fear putting my eggs in this basket right now, as a negative judicial review would be mandate for removal of other 'traditional' rights. However, there really doesn't appear to be any reason other than religion for banning gay marriage, and hopefully upon review this is made clear and is decisively outlined by the courts.

Hopefully, this is a solid step in the right direction.

My understanding of the Constitution does tell me that this is absolutely a federal problem/question. Now, as I say at work all the time, "Imnottalawya", but doesn't the 4th Amendment have that pesky "Full Faith & Credit" clause? Doesn't that effectively mean that a marriage granted in one state must be honored in states where it's forbidden to marry gays?

I guess such a thing would probably have to be decided by the U.S. Supreme Court, but that's how I'm reading this.

SCOTUS has to rule the 1996 Federal DOMA as unconstitutional before Full Faith & Credit can be applied to same-sex marriages.

I'd consider you to be the expert here. I'll take your word for it.

Wouldn't the "Full Faith and Credit" clause have allowed interracial marriages to be legal in all states? It took a Supreme Court decision in 1967 (Loving v. Virginia) to strike down miscegenation laws. I'm not sure if they used the 4th Amendment to justify the ruling, though.

I meant 14th amendment full faith and credit.

Here's the heading from findlaw.com

U.S. Supreme Court
LOVING v. VIRGINIA, 388 U.S. 1 (1967)
388 U.S. 1

LOVING ET UX. v. VIRGINIA.
APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA.
No. 395.
Argued April 10, 1967.
Decided June 12, 1967.

Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Pp. 4-12.

I agree, it is a step in the right direction.

A couple of points tho. (It seems like we agree on the issue so I'm just splitting hairs here). You have to agree that strictly interperted, yes, its only the rights granted to the minority by the majority that they enjoy. HOWEVER, through the evolution/interpertation of the constitution, rights of the minority (not religious or ethnic in this case, simply the non-majority) have been expanded, not contracted, so it would seem that in keeping with that trend, the natural extention of those protections will continue.

I dont advocate the elimination of the representative democracy or anything. (far from it, see my other posts on how I dont think stupid people should even be alowed to vote). My point about voting as a nation to ban gay marrage was a rhetorical statement to RUgreek's statement of "well thats what we voted for." Only in the most liberal of interpertations coudl it be said that we voted for it. All bans on gay marrage have been at the state or local level. The 1996 DOMA law didnt ban gay marrage on the federal level, one part of it (and the part relevant to this debate) said the governmet would not be recognizing it if a state were to legalize it.

I was being trite because those on the far right have this habit of wanting to eliminate all judicial review. JR is critical to our evolution as a nation and is enshrined in the constitution FOR THAT REASON. Some of our most important steps forward have been because of JR and it just seems scary how they want to severely limit JR. If someone was squacking about limiting congress' power (especially while the republicans hold the majority) there would be riots on the airwaves. Its crap.


<--------------------------- degree in Pol. Science and finally gets to put it to use.

I agree in principle. The reality, though, is that the 'natural extensions' we've been enjoying are not guarantees, as you pointed out - and thus strict review can prove dangerous to these rights.

Especially in a subject as divisive as this, and as constitutionally complex, there's always the chance of strict interpretation being utilized . . .

Agreed, and I wasn't piggybacking on RUgreek's point at all - just pointing out that we effectively lose the right to claims such as "I never voted for that!" as soon as the ballot hits the box. This wasn't so much geared toward you, as at others in the thread to prevent widespread whineyism.