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MARCH 18, 2005
Califoria marriage ruling
actually behind the curve
When it comes to same-sex marriage, the Golden State
isn't on the cutting edge. Its judiciary is playing catch-up.
Still, the ruling was welcome news in a bleak season.
By MUBARAK DAHER
OR THE SECOND TIME IN
a year, gay and lesbian couples gathered in matrimonial throngs at city hall in
San Francisco this past
week. Some were waving
rainbow flags. Others held
up marriage licenses in a sign of victory.
But unlike last year — when the prescient mayor of that city, Gavin Newsom,
announced his city would start handing
out marriage licenses to same-sex couples
because he felt the state law banning it
violated the state's constitution — there
were no nuptials this time around.
But there was plenty of gay marriage
celebration. And before long, there may
well be wedding bells ringing there again
for same-sex couples.
As the entire nation knows by now,
that's because a state judge in California
ruled on Monday, March 13, that the
state's ban on gay and lesbian marriages
violates California's constitution.
County Superior Court Judge Richard
Kramer wrote there was "no rational purpose" in refusing same-sex couples the
right to marry.
"The denial of marriage to same-sex
couples appears impermissibly arbitrary," he ruled. "Simply put, same-sex
marriage cannot be prohibited solely
because California has always done so."
He likened the state's domestic partnership laws — considered to be the third
most comprehensive set of laws in the
country protecting same-sex couples, after
only Massachusetts, which allows gays
and lesbians tamarry, and Vermont,
which sanctions civil unions — to the historically flawed 'separate but equal"
racial laws of the past.
Kramer flatly rejected the argument by
two conservative groups that gays shouldn't be allowed to marry because they cannot procreate.
"One does not have to be married in
order to procreate, nor does one have to
procreate in order to be married,"
Kramer wrote. "Thus, no legitimate state
interest to justify the preclusion of samesex marriage can be found."
THE RULING MADE HEADLINE NEWS,
and provided further fuel to the already
red hot flames of same-sex marriage.
Anti-gay groups intend to appeal the
law in California, so the ruling is far
from the last word on the subject — there,
or anywhere else in the country.
Still, the victory gave a much-needed
injection of public optimism, not to mention
a level of vindication, to those supporting
and fighting for same-sex marriage rights.
Just a few months ago, following the
outcome of the November presidential
election, supporters and activists on the
same-sex marriage front were being
scapegoated and vilified, even from within gay and lesbian quarters, for making
such a public stand on marriage.
George W. Bush brilliantly manipulated the issue to his advantage at the polls,
voters in 11 states approved bans on
same-sex marriage, and the Democrats
conveniently used the issue to cover up
John Kerry's failings as an uninspiring
All of a sudden, gay marriage was no
longer hip. It was poison.
This ruling, particularly if it holds —
and many observers are optimistic it
will — has seemingly made us a popular
cause again in the imaginations of many
I guess everybody really does love a
BUT IN ALL THE HOOPLA, IT'S CRUCIAL
that we note one extremely important
and often misrepresented fact, especially
since there will undoubtedly be other less
joyous moments ahead in the long and
strenuous road ahead for same-sex marriage rights.
Despite the media frenzy and the second rash of celebrating in San
Francisco's city hall, the California ruling is not groundbreaking or exceptional.
It's very good news. It's an important
step. It's a reason to cheer.
But in many ways, it's old hat.
The fight for recognizing the legal
marriage rights of gay and lesbian couples goes at least as far back as 1993,
when Hawaii's Supreme Court similarly
ruled that discrimination against samesex couples was more than likely unconstitutional. A trial judge removed the
restrictions prohibiting gays and lesbians
from marrying, but voters there amended
their constitution to limit marriage to
one man and one woman.
But since then, an additional half a
dozen state's courts have ruled in favor of
allowing same-sex couples to marry:
Alaska, Massachusetts, New York,
Oregon, Washington and now, California.
Furthermore, there are court cases
pending in Connecticut, New Jersey,
Maryland and Indiana.
Vermont offers a nearly carbon copy
of marriage in their form of civil
unions, and Massachusetts allows it outright. And of course, Canada, too, has
come to the same conclusion on same-sex
Interestingly, the Connecticut legislature looks poised to pass a civil unions
law soon, too — even without a court
order to do so.
Even in California, the court ruling
doesn't really break much new ground
when it comes to the notion of same-sex
couples: In the past few years, the state
legislature has passed a collection of laws
that give gay and lesbian couples nearly
as many rights and protections as
straight married couples, without calling
it by that sacred name.
Here in New York, meanwhile, a judge
ruled only a month ago that New York City
had to allow gay marriage. Mayor Michael
Bloomberg is appealing that ruling.
JUDGE KRAMER'S RULING WILL,
without question, boost the energy, will
and determination of foot soldiers in the
conservative right who want to pass a federal amendment to the US Constitution
banning gay and lesbian marriage.
Conservatives will protest loudly that
California's Judge Kramer is just another
outlandish example of "judicial
activism" that has veered out of control.
But the truth is that, for years, not
only the courts, but politicians and legislatures have been debating — and granting — marriage rights to same-sex couples. The notion can no longer be reasonably called outside the mainstream.
When it comes to same-sex marriage,
California is not even cutting edge.
Mubarak Dahir is
editor of the
Express Gay News
and can be reached at