Protecting Adam and Steve

The neglected significance of California's same-sex marriage ruling

It was almost exactly a year ago that gay couples got a rude awakening from their California dreaming, when the California Supreme Court enjoined San Francisco mayor Gavin Newsom to cease issuing marriage licenses to same-sex couples. The Court would retroactively void the unions of some 4,000 gay husbands and wives only a few months later, on the grounds that Newsom had exceeded his legal authority in granting the licenses.

San Francisco Superior Court Judge Richard A. Kramer resurrected that dream yesterday, when he ruled that California's ban on same-sex marriages violated the California constitution's guarantees of equal protection under the law. An inevitable appeal to the state's Supreme Court will soon follow, and since the decision was rendered on the basis of state law, that should be where the buck stops.

The aspect of the judge's decision that has received the bulk of media attention is his finding that the restriction of marriage to opposite-sex couples lacks a "rational purpose." Citing landmark cases from another battle for civil rights—such as Perez v. Sharp, which struck down California's anti-miscegenation laws—the judge rejected arguments from tradition: No span of time, he effectively said, could sanctify bigotry.

The argument that marriage serves a narrow purpose of encouraging procreation and stable families also failed to persuade. As the judge noted, California doesn't restrict marriage to heterosexual couples who intend to procreate. He didn't add, though he could have, that the goal of protecting families increasingly fails to distinguish gay from straight couples. As demographer Gary Gates, author of The Gay and Lesbian Atlas, notes, census data shows that in 1990, about one in 20 gay male domestic partners and and one five lesbian couples were raising children. By 2000, the rate of child rearing had risen to one in five for men and one in three for women. While Gates cautions that differences between the 1990 census and the 2000 census make precise comparisons difficult, the order of magnitude of the change suggest that a kind of gay baby boom is indeed underway. That meshes well with the results of a 2001 Kaiser Family Foundation survey, which found that half of gays who weren't currently raising children wanted to someday.

But perhaps the most interesting part of Judge Kramer's opinion has received surprisingly little attention. Kramer applied the lowest level of judicial scrutiny when he considered whether marriage discrimination was rationally related to any legitimate state purpose. In this, he followed the structural logic of such Supreme Court decisions as Romer v. Evans, which struck down an anti-gay initiative in Colorado. But Kramer also ruled that this lowest level of scrutiny was not, in fact, the proper level to apply.

After carrying out his "rational purpose" analysis, Kramer asserted that California's ban on same-sex marriage was actually subject to "strict scrutiny," which "applies where a legislative classification creates a 'suspect' class or impinges on a fundamental human right." Both, said Kramer, were true of the marriage ban: Marriage is a fundamental right, as the Supreme Court found in Loving v. Virginia, and discrimination according to gender makes use of a "suspect class."

Under California law, Adam may legally marry Eve, but not Steve. Since the difference between what's permitted and what's forbidden is the gender of Adam's prospective partner, reasoned Kramer, the law discriminates according to gender. That the law restricts men and women alike from marrying someone of the same sex, argued Kramer, no more immunizes it from review as an "equally applicable" law than does an anti-miscegenation statute requiring whites and blacks equally to marry someone of the same race.

This last argument is the truly interesting one, because it has potential applications outside the marriage context. If state discrimination against gay couples—as opposed to gay individuals, who still have not been ruled to constitute a suspect class—is viewed as gender discrimination subject to strict scrutiny, then the state must supply not merely a "rational basis" for legislation to pass constitutional muster, but rather advance a "compelling state interest" for making a distinction. If the California Supreme Court agrees with that aspect of Kramer's reasoning, it will set a precedent for a far higher level of protection for gay families than they have heretofore enjoyed.