Monday, March 14, 2005

 

"Separate, But" Sequel

The good news out of California for committment-minded gays and lesbians is that even a married, Catholic male trial court judge appointed by former (GOP) Governor Pete Wilson understands that the issue is equal protection. The (possibly) bad news ahead, could turn out to be that a majority of the California Supreme Court won't agree with him:

The state maintained that tradition dictates that marriage should be limited to opposite-sex couples. Attorney General Bill Lockyer also cited the state's domestic-partners law as evidence that California does not discriminate against gays.

But [San Francisco trial judge Richard] Kramer rejected that argument, citing Brown v. Board of Education — the landmark U.S. Supreme Court decision that struck down segregated schools.

"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts — separate but equal," the judge wrote.

I must point out, as well, that I accurately "called" this one, on this very blog, nearly a year ago:

. . . One possibility, it seems to me, is to hold that civil unions (which, in California at least, are supposed to grant gay couples every right of marriage except the name) are a system of "separate-but-equal" rights, and that such apartheid schemes are no more constitutional when enacted by legislatures than when imposed by courts.

It does seem ironic that California's domestic partnership law -- quite possibly the broadest in the country -- has backfired on those who wished to use it to head off full marital rights for gays and lesbians. Strange as it sounds, the less distinction the legislature makes between civil unions and marriage, the more likely the courts will strike down the former as only a pale imitation of the latter.

(An interesting sidenote: The anti-gay-marriage parties to this dispute, early on, maneuvered mightily to get the "gay marriage" trial moved to Judge Kramer's courtroom, and out of the courtroom of Judge James Warren -- a grandson of that "evil lib'rul activist" Chief Justice Earl Warren -- and an openly gay man. Guess that move didn't yield the results they'd hoped.)

posted by Michael 8:58 PM