California superior-court judge Richard Kramer has managed to be even breezier than the Supreme Judicial Court of Massachusetts in striking down traditional marriage laws. Like the jurists on the other coast, he finds the law’s definition of marriage as the union of a man and a woman not just wrong or outdated but irrational. He does not hold (as they did not hold) that the reasons for holding the view of marriage that everyone has held for millennia are defeated by other, better reasons; he holds (as they held) that there are no good reasons in the first place. He has never heard of a possible reason to regard marriage as a male-female union. That view of marriage, Kramer holds, again in keeping with the Massachusetts ruling, cannot survive even the lowest level of scrutiny a judge can bring to bear on a statute.
But in one respect, Kramer goes a step beyond Massachusetts. The Massachusetts court considered the claim that marriage might be defined as the union of a man and a woman because marriage has something to do with procreation. It then ruled that since the culture, various pieces of legislation, and previous judicial decisions had weakened the links among marriage, sex, and the raising of children, marriage therefore had nothing to do with procreation and any features of the marriage law premised on a contrary belief had to go. The reasoning was specious: From the premise that the law and the culture contain inconsistent views of marriage, it does not follow that the court should resolve the inconsistency by throwing out those elements it dislikes.
Kramer, however, did not even perform this perfunctory analysis. He merely 1) finds that the California courts have not recognized procreation as a purpose of the marriage laws, 2) observes in passing the “obvious natural and social reality that one does not have to be married in order to procreate, nor does one have to procreate in order to be married,” and 3) finds that procreation is–therefore!–not a legitimate state purpose. One would think that even a proponent of same-sex marriage would want to do better than that. Under any set of marriage laws, the fit between the laws’ purpose and the eligibility criteria they establish will be somewhat loose. Are the laws there to promote loving relationships? Well, the law doesn’t require that the partners in a marriage love each other. Do they promote the formation of stable households where the partners look out for each other? Well, not every married couple lives together, and it is an “obvious social reality” that not every cohabiting couple is married. This kind of pseudo-rationalism would undermine any marriage law at all.
“The public has not given
its consent to same-sex
marriage.”
Kramer’s ruling is undemocratic, as was the Massachusetts ruling. We mean this not only in the obvious sense that the voters of California reaffirmed their commitment to keeping the marriage laws as is in a referendum in 2000, and Kramer overrode their judgment. That would not be a decisive objection if it really were the case that the ruling flowed from a constitutional provision that the people of California had ratified. But the public has not given its consent to same-sex marriage in this deeper sense either. There is no plausible argument that any provision of the state constitution was originally understood to require same-sex marriage (or to enact a principle from which same-sex marriage could be directly derived). Nor has anyone even tried to argue as much. The best that can be said is that, if Kramer’s ruling stands, there is a good chance that Californians will not overturn it by amending the state constitution. (Governor Schwarzenegger has already said he will take the state’s judges’ word as final.) That is the most democratic legitimacy that can be expected in Massachusetts, too–and it is a far cry from the consent of the governed.
In California, as in Massachusetts, as in Hawaii and Vermont before them, what has been going on is not the evolution of the law to keep pace with changing views of marriage. What has occurred is a series of attempted judicial coups. The courts are putting in place the premises to strike down traditional marriage laws in state after state until the federal courts administer the coup de grâce. The only way to stop it is through a federal constitutional amendment.