About Us

Contact Information

How You Can Make a Difference


Legislative Action Center


Policy Information Center


Religious Liberty

Send Me
More Information




Policy Communiqué

Same Sex Marriage Ban Voided by California Judge

 Joel P. Rutkowski, Ph.D., President 
The American Voice Institute Of Public Policy  


The Marriage Union
Same-Sex Unions Are Not Protected Rights  
Judicial Activism
End Notes

On March 14, 2005, California's ban on same-sex marriage was declared unconstitutional by a San Francisco County Superior Court judge who said it violates  the “basic human right to marry a person of one's choice.”  (1)  

Richard A. Kramer of San Francisco County Superior Court said “the denial of marriage to same-sex couples appears impermissibly arbitrary,” thus violating the equal protection clause of the state's Constitution, in a tentative ruling.  (2)  Until the judge meets with the various parties to begin litigation on March 30, 2005, the ruling will not be made final. However, the ruling would be appealed as soon as it was made final.  

San Francisco Mayor Gavin Newson directed the county clerk to issue marriage licenses to homosexual couples in February 2004, just to have the licenses invalidated by the California Supreme Court.   Mr. Newson had exceeded his authority as mayor, the high court determined.  However, the constitutionality of state laws restricting marriage only to unions of a man and a woman was not considered.  Based on a law enacted by the Legislature in 1977 and a statewide initiative approved  by 62 percent of the voters in 2000, known as Proposition 22, the restriction was based.  

To challenge the state's restriction on sexes of married couples, Judge Kramer in the ruling on March 14, 2004, was responding to a lawsuit filed by the city and more than a dozen same-sex couples. 

Arguments made by the same-sex marriage opponents at one point were compared by Judge Kramer to those made in cases dealing with antimiscegenation laws.   

Judge Kramer invoked arguments once made on behalf of segregated schools in reviewing an argument by the attorney general's office that California's domestic partnership law was evidence that the state does not discriminate against same-sex couples.  

He wrote, “The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts, separate but equal.” (3)  

Justice Kramer wrote in a decision that relied on rights guaranteed by the California Constitution, “No rational purpose exists for limiting marriage in this state to opposite-sex partners.   (4)  In another groundbreaking ruling, the California Supreme Court's 1948 decision striking down the state's law against interracial marriage was cited by the Judge as precedent.    

Justice Kramer said the marriage law violates fundamental rights, discriminates on the basis of gender and lacks any rational justification in his 27-page ruling.   Attorney General Bill Lockyer's argument that California was entitled to maintain the traditional definition of marriage while granting gay and lesbian couples most of the rights of spouses in a domestic-partner law that took effect this year was rejected by Justice Kramer.  

He said, a discriminatory law “ cannot be justified simply because such constitutional violation has become traditional.”  When the California Supreme Court became the first in the nation to strike down a state ban on international marriage, the same argument was made and rejected in 1948 said Kramer.  

Mayor Gavin Newson of San Francisco welcomed the decision but said it was “only the beginning” of a long legal battle that would probably be decided by the California Supreme Court.  And while litigation was pending, Mr. Newson said marriage licenses would not be offered to same-sex couples in San Francisco.

Back to the Top  

The Marriage Union

The marriage union is a relationship characterized by privilege and it is this understanding of this relationship that has been understood from antiquity through centuries of thought and experience that shaped its meaning in American legal practice.  (5) Recognized to have a privilege “to have and to hold” the person of the other is each spouse.   No one else may claim a right to join that union since the privilege is exclusive.  

In this sense the Declaration of Independence speaks of regarding inalienable rights: “among these [implying there are others] are life, liberty, and the pursuit of happiness,” the marriage privilege is prior to government.  By nature to perpetuate the species families exist or natural rights themselves would disappear.  And thus to ‘secure' rights created by “Nature and Nature's God, “ is the purpose of government, not to dispense them.  Governments do this by enforcing laws placing limits on how individuals exercise their privileges and natural rights. For example, by jailing or executing criminals, the rights to liberty and life can be constrained.  Therefore since the family is central to the well being of society the marriage privilege must also be regulated. It has never been claimed  by a nation that an individual should be permitted to marry anyone they choose.  A relationship to be enjoyed only by specific persons permitted and protected by law is the legal requirement of a marriage license that grants a social privilege par excellence.   

Demands to legalize polygamy, polyamory (Group marriages), triple parenting, and incestuous partnerships and beastiality have resulted from the movement to redefine marriage to include homosexual unions.  As proponents of these various arrangements clearly understand — this ruling implies the abolition of the marriage privilege by expanding marriage to include same-sex partnership.  The principle that is supposed to legitimize same-sex marriage — personal affectional preference — is the real issue in common among these relationships.  However, incapable of being radically redefined is marriage.  Limits are imposed by the fixed nature of the relationship.  As social and legal institutions transcend the limits, the marriage union dissolves.  

The Supreme Court for most of its history held that traditional marriage forms a family unit that is of free society the fundamental building block.  Without it, the forms of self-government could not survive, so undermining free government is any weakening of the marriage privilege.  Therefore, the federal government is obligated according to the Constitution of the United Sates (Article IV, Section 4) to strengthen its basis in the marriage union to preserve the Republic.  

Presupposing the purpose of securing the marriage privilege, not weakening it, is the state's power to enact marriage laws.  The states may not do so by the terms of the Fourteenth Amendment.  

Justice Richard A. Kramer does not have the constitutional authority to redefine marriage.  By definition, a change in its nature is to stretch the limits of the marriage union beyond a man and a woman.  One cannot claim that redefinition would not change marriage as it is understood.  And within the meaning of the Fourteenth Amendment any fundamental state-imposed change would “abridge,” weaken or limit the marriage privilege.  Therefore to redefine or abolish marriage, a new constitutional amendment would be required to allow the states to do so.   As a result, the duty to defend the privileges of American citizens against state actions to change their meaning is imposed on Congress by the Fourteenth Amendment.

Back to the Top  

Same-Sex Unions Are Not Protected Rights  

In the past 12 years, at least 10 states have had rendered varied judicial opinions on same-sex marriages.  

Similarly to San Francisco Superior Court Judge Richard Kramer, in New York, Manhattan State Supreme Court Justice Doris Ling-Cohan said: “Marriage is no more limited by the historical exclusion of same-sex marriage than it was limited by the exclusion of interracial marriage” and other abandoned legal restrictions.  (6)  

However, since “the mandate for racial equality (and not for sexual-orientation equality) is firmly enshrined in both the federal and state constitution,” a trial court in New Jersey found interracial marriage not comparable (Ibid.)  And a context for procreation and nurture of children is another facet in many decisions.  Marriage furthers “state interest in encouraging opposite sex couples to reproduce,” an Indiana appellate court found. (7) In an Arizona decision: Limiting marriage to opposite-sex couples is constitutional since it isn't “arbitrary or irrational,” but it may be “debatable” or “unwise,” said an appeals court.  

The basic civil rights accorded other citizens are not denied homosexuals by defining marriage as the union of a man and women.  The unrestricted right to marry whoever one wants is not granted to any individual.  For example, even if they are of legal age, a parent cannot marry their children, or the husband or wife of another individual or two or more spouses.  (8)  

When one is unjustly denied some benefit or opportunity, discrimination occurs.  However, it must be demonstrated first that such individuals deserve to be equally treated.  States for example, rightly discriminate who is allowed to be a physician.  Since, an individual is not allowed to practice medicine because he is not trained as a doctor, he has no rightful claim to discrimination.   

Discrimination would on the other hand occur if a properly credentialed physician, as a result of skin color, was refused hiring.  Simply because of race such individuals have been denied employment in the case.  

In Baker v. Nelson, the issue of alleged discrimination was addressed by the Minnesota Supreme Court when it rejected the argument that the equivalent of racial discrimination was denying a same-sex couple the right to marry.  “In common sense and constitutional sense, there is a clear distinction between marital restriction based merely upon race and one based upon the fundamental difference in sex,” the court found.  (9)  

A three-judge panel of the Arizona Court of Appeals similarly ruled unanimously against two homosexuals who argued in a lawsuit that marriage is a fundament right, and that prohibiting it for same-sex couples violates constitutional protection for due process in October 2003.  The state's ban on homosexual marriage, “rationally furthers a legitimate state interest,” and thus does not discriminate against homosexuals by depriving them of their constitutional rights, the court found. (10)  Furthermore, the court noted: “Recognizing a right to marry someone of the same-sex would not expand the established right to marry, but would redefine the legal meaning of ‘marriage'”    

Back to the Top  

Judicial Activism  

Justice Richard A. Kramer of the San Francisco County Superior Court is just another example of America's failed judicial system that is no longer governs by the rule of law, but judicial activism. Judge Kramer is a single individual that has become a policymaker for the entire state of California reflecting his own ideological preference and not that of the people.  Based on a law enacted by the Legislature in 1977 and a statewide initiative approved by 62 percent of the voters in 2000, known as Proposition 22, the California's ban on same-sex marriage is based. Furthermore, the majority of Americans oppose gays and lesbians marrying legally.  According to a Pew Research Center/Pew Forum on religion and Public Life survey conducted nationwide by Princeton Survey Research Associates international between August 5-10,2004, 60 percent opposed allowing gays and lesbians to marry legally.  The destiny of the state of California must be controlled by the people not the courts.  And social engineering judges must not guide any reform of the state but the people.   

Judge Kramer has moved into actual legislation and policy-making from the bench which is solely the responsibility of elected representatives and has passed far beyond his designated role of settling disputes under the law.  As a result of activist judges such as Justice Kramer America, a Republic is becoming more like an oligarchy that is ruled by judicial fiat that seriously distorts constitutional checks and balances.  Although laws are legitimately enacted by the people through their elected representatives or through referendums, judges such as Justice Kramer continue to unconstitutionally overturn any law of the land and no longer interrupt the law but make it.   Wrongfully, as well as unconstitutionally, the minority belief has become the majority view by the willing assistance of judges such as Richard A. Kramer.  He is imposing his own system of values on others by judicial fiat and has disregarded the legislative process.  

The government of the state of California is to function with the consent of the governed either through a legislative action or the action of an elected executive.  At no time over the objection of the majority should policy be enacted by a minority group.  The minority is not equivalent to the majority and should never exercise strength over the majority although the minority does have a right to attempt to persuade the majority to accept its point of view or include portions of it in decisions.  With this judge's actions, this was not the case.   It is time for this nation to hold justices accountable for their actions as they try to rule by tyranny and oppression and remove such justices from the bench.  

Back to the Top  

End Notes  
  1. Bob Egelko, “Judge strikes down ban on same-sex marriage,” San Francisco Chronicle , March 15, 2005.
  2. Dean E. Murphy, “California Judge Voids Ban on Gay Marriage,” The New York Times , March 15, 2005.
  3. Ibid.
  4. Bob Egelko, “Judge strikes down ban on same-sex marriage,” San Francisco Chronicle , March 15, 2005.
  5. Dennis Teti, The Federal Marriage Amendment Is Hopeless, “ T he Weekly Standard , November 19, 2003
  6. Claire Cooper, “Gay marriage: The great (legal) divide,” The Sacramento Bee , March 16, 2005.)
  7. Ibid.
  8. Timothy J. Daily, Ph. D., “The Slippery Slope of Same-Sex ‘Marriage,'” The Family Research Council, February 8, 2005.
  9. Ibid.
  10. “Court Upholds State's Ban on Same-Sex Marriage,” The Associated Press , October 8, 2003.

  Back to the Top  

Back to the American Voice Institute of Public Policy Home Page