March 15, 2005

Gay Marriage in California: Judge Kramer and Strict Scrutiny

Julian Sanchez notes a key point in yesterday's decision. Banning gay marriage isn't simply problematic because of the ban takes away a fundamental right without a rational basis - there's also the problem of gender discrimination.

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."

Kramer's not the first to make this point, and it's a key issue in this public policy debate.

Posted by armand at March 15, 2005 03:04 PM | TrackBack | Posted to Law and the Courts


Comments

It was a good decision. Let's hope it is upheld.

Posted by: Downtown Lad at March 15, 2005 11:54 PM | PERMALINK

i have to say, on the propriety of strict scrutiny i tend to line up with the conservative side. loving v. virginia, and every other gender discrimination strict scrutiny case concerned denial of access or of privilege in virtue of the gender of the person so denied. here, absent some semantic gymnastics, it's hard to interpret the gender discrimination claim as anything other than a situation where the person so denied claims discrimination on the basis of the gender of his chosen mate. this is a crucial distinction.

i think lawrence v. texas paves the way for civil unions with all the legal incidents of marriage. as for the word marriage, it's ruined this debate and i'm sick of it. marriage is something that occurs in church; everything else is civil unions, and if we could just start saying it that way, the debate would be easier, and lead more swiftly to the desired result (which, of course, i share with you).

a unitarian universalist church (gathering place?) in shadyside just recently unfurled a banner over the entrance:

CIVIL UNION IS A CIVIL RIGHT

that's the best slogan, the best campaign mantra, i've seen yet. because it's accurate, unassuming, and stays away from the marriage trap.

a

Posted by: joshua at March 16, 2005 09:25 AM | PERMALINK
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