Published: March 15, 2005

A San Francisco judge on Monday broke new ground in California's legal conflict over same-sex marriage, finding the state's ban on gay unions unconstitutional and pushing the issue closer to a decisive showdown in the state Supreme Court.

If the ruling is upheld, it will force the nation's largest state to allow same-sex marriages. Superior Court Judge Richard Kramer concluded that California is violating the equal protection rights of gay couples by not allowing them to marry. The judge's 27-page decision rejected the state's arguments for maintaining a gay marriage ban, saying there was no justification for the current law.

"Simply put," Kramer wrote, "same-sex marriage cannot be prohibited solely because California has always done so before."

But there won't be legalized gay nuptials any time soon. The judge's ruling will not become final until later this month and then is expected to be stayed during the appeals process. It is far from the last word in what promises to be a protracted legal and political fight over the future of same-sex marriage in California.

Opponents of gay marriage quickly vowed to appeal the decision, possibly directly to the state Supreme Court, and continued to threaten a ballot initiative to settle the divisive issue outside the courts. Attorney General Bill Lockyer, who is defending the law, said he was reviewing the ruling before deciding on a course of action. It could be a year or more before the case is fully aired in the appellate courts.


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But Kramer's ruling marked the first time a California judge has expressly found that the state's laws restricting marriage to a man and woman - added to the books in 1977 - are unconstitutional. It was a watershed moment in a legal battle that began last winter in San Francisco.

By finding "a fundamental right to choose who one wants to marry," the judge also ruled that Proposition 22, a 2000 voter-approved initiative that outlawed recognition of gay marriages from other states, was unconstitutional.

Kramer, a Republican, ruled on a series of lawsuits filed by a dozen gay couples seeking the right to marry, as well as San Francisco city officials and civil rights groups challenging state law.

Reaction to the ruling fell along predictable lines for an issue that has sparked a nationwide debate over the past year, since the Massachusetts courts struck down a state ban on gay marriage and San Francisco Mayor Gavin Newsom issued thousands of marriage licenses to gay couples before the courts stopped him.

Michael Butler of San Jose called the ruling "good news," but said he is hoping for a resolution soon so he can finally declare his February 2004 marriage to partner Rick Butler legal. Same-sex marriage advocates held celebrations in San Jose and San Francisco, while Newsom and City Attorney Dennis Herrera praised the ruling as "courageous."

But San Francisco officials cautioned that California remains a long way from sanctioning same-sex marriage.

"This is an important day, but hardly is the effort complete," Newsom said.

Foes of same-sex marriage criticized the ruling and prepared for the next round in the higher courts. Randy Thomasson, executive director of the Campaign for California Families, called Kramer, a 1996 appointee of former Gov. Pete Wilson's and married father, a "San Francisco judge who apparently hates marriage and the voters."

"The decision itself is nonsensical," added Assembly man Ray Haynes, R-Temecula, who is backing a state constitutional amendment to bar gay marriage. "It's the judge making things up."

Kramer's decision did not come as a surprise to legal experts, who were quick to point out that it parallels recent rulings from trial judges in Washington and New York, although courts in Indiana and New Jersey have reached different conclusions.

Experts say that while it remains hard to predict how California's generally conservative Supreme Court will treat the gay marriage issue, Kramer's ruling lays important groundwork that gives civil rights advocates an early leg up in the case.

"To say this is just one judge in San Francisco is misleading," said William Rubenstein, an expert on sexual orientation issues at the University of California-Los Angeles' law school. "The judge's decision is consistent with the trend around the country."

In his decision, Kramer rejected the state's two primary arguments for banning same-sex marriage: that California has a tradition of restricting marriage to a man and a woman, and that the state in recent years has given comparable legal benefits to same-sex domestic partners.

"The idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal," wrote Kramer, who relied heavily on the same legal reasoning the California Supreme Court used nearly 50 years ago to strike down the state's ban on interracial marriage.

In addition, the judge turned away the argument of gay marriage foes who maintain the state has an interest in protecting traditional marriage because of the ability of couples to procreate. Kramer noted that many heterosexual couples marry without having children.

The ruling comes amid a flurry of activity in the Legislature, where three bills related to gay marriage are pending. Assemblyman Mark Leno, a San Francisco Democrat, said the ruling could embolden his fellow lawmakers to support his proposed bill to make marriage a civil contract between two people.

Gov. Arnold Schwarzenegger didn't appear particularly troubled by the ruling, reiterating that he favors domestic partnerships but does not "believe" in gay marriage.

"Whatever the Supreme Court decides, that's exactly what I will stay with," he told Chris Matthews of "Hardball" in an interview at Stanford University.