Sunday, March 20, 2005

California Dreaming

This past week San Francisco County Superior Court Judge Richard Kramer said that withholding marriage licenses from gays and lesbians violates California's Constitution.
"It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners," Kramer wrote.

The judge wrote that the state's historical definition of marriage, by itself, cannot justify the denial of equal protection for gays and lesbians.

"The state's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional," Kramer wrote.

Before I get going, let me state that below is the equal rights provision of the California Constitution as it was adopted and enacted by the State of California on February 17, 1972.

CALIFORNIA CONSTITUTIONARTICLE 1 DECLARATION OF RIGHTSSEC. 7. (a) A person may not be deprived of life, liberty, orproperty without due process of law or denied equal protection of thelaws; provided, that nothing contained herein or elsewhere in thisConstitution imposes upon the State of California or any publicentity, board, or official any obligations or responsibilities whichexceed those imposed by the Equal Protection Clause of the 14thAmendment to the United States Constitution with respect to the useof pupil school assignment or pupil transportation. In enforcingthis subdivision or any other provision of this Constitution, no court of this State may impose upon the State of California or anypublic entity, board, or official any obligation or responsibilitywith respect to the use of pupil school assignment or pupiltransportation, (1) except to remedy a specific violation by suchparty that would also constitute a violation of the Equal ProtectionClause of the 14th Amendment to the United States Constitution, and(2) unless a federal court would be permitted under federaldecisional law to impose that obligation or responsibility upon suchparty to remedy the specific violation of the Equal Protection Clauseof the 14th Amendment of the United States Constitution.
From this any reasonable individual can see that the equal protection clause under the California Constitution does not allow any court in the State of California except to remedy a violation of the 14th Amendent of the Constitution of the United States. Judge Kramer in his ruling states that the traditional definition of marriage by itself can not be used to justify the State of California for denying gay marriages in that State. However, Judge Kramer does not view the intent of the 14th Amendment of the United States Constitution in his decision. [ To save some time on where I am going with this and to prevent me from writing a law school caliber paper, which I'm not in the mood for writing right now, please visit either this link or visit the blog of Miss Amanda Owens, which can be found by clicking the appropriate link on the left of the page]
Long story short, the equal protect clause of the 14th Amendent was not written with the legislative intent of providing equal protection for same sex marriages. The 14th Amendment was adopted and added to the United States Constitution in 1868 it reads as follows:
Amendment XIV (1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The legislative intent of this ammendment came out of reconstruction following the War Between the States. Freed slaves were being denied the rights provided to their white peers in many states, mostly in the states that had formed the Confederate States of America. This law allowed freedmen the ability to be counted as a person in census numbers and not 3/5 had been the fate of slaves, it provided freedmen the right to vote, own property, and participate in the political process, except in cases of those held in violation of the prohibitions stated in section 3 (I remember this by thinking of it as the General Lee clause, though it extended to many others, Lee is the most well known case I think of.)
Judge Kramer is placing the legality of gay marriage into a lense of 19th century reconstruction. The intent of the 14th Amendent was to focus upon the issues resulting out of the War Between the States not for the issue of gay marriage, for such an issue would not have been considered at that time, anywhere in the world. It cannot be applied to an issue for which it was never intended to apply. As such, it cannot be used to issue a legal decision on a matter for which it was not meant to address.
As such, Judge Kramer has made an unconstitutional ruling based on what he wishes to see in the laws of California and the Constitution of the United States. Unfortunately, this is becoming a common practice of judges sitting on the bench who wish to see their political agendas advanced to the sacrifice of the rule of law at the alter of humanistic philosophy.
As the 14th Amendent clearly states, the enforcement of the 14th Amendment is left to Congress to make laws and provisions unto that end. The laws of California do not violate this, California defines marriage as union between a man and woman. As such, the people of California have laws in place to show how they view the idea of marriage in that state. Even if we want to go so far as to say that the 14th Amendent does apply to this case, and I do not believe that it does, then the California people have stated what they consider to be and not to be a provision of equal protection. By prohibiting gay marriage, the people of California have stated that gay marriage is not something they want to recognize in that state. Therefore, the California Congress has made a provision for the enforcement of the 14th Amendent, and that provision is that gay marriage does not qualify.
On a Federal level, gay marriage does not fall under the 14th Amendment. Just as the 14th Ammendment did not extend to giving women the right to vote, equal protection did not apply in this case, therefore it can certainly not extend to another situation. Gay marriage is not provided for under the laws of the United States.
I will freely that admit that I am opposed to gay marriage. However, it is a matter that must be left to the states to decide upon on a state by state basis and/or to the Congress of the United Stated and 2/3 of the states as a Constitutional Amendemnt. Judge Kramer is wrong in his decision and it should on a legal basis be overturned.

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