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When You’re Right….

Mar
16
2005

Here’s an interesting little bit of trivia about the fight for gay marriage rights and the folks who are waging it: Almost everyone involved is Roman Catholic. San Francisco Mayor Gavin Newsom? Yup. City Attorney Dennis Herrera? Ditto. How about the judge? Yup, says the San Francisco Examiner. This, of course, is a vestige of the city’s past. In a state colonized by the Spanish, San Francisco was a city built (and rebuilt) by the Irish and Italians with just a little teeny bit of French thrown in.
Judge Richard Kramer, appointed to the bench by Pete Wilson – you can’t call him Liberal and you can’t denounce him as an “activist” and mean it — has issued a very interesting legal opinion in this case. It’s well written and it’s not too long and if you have any doubts about the legal validity of same-sex marriage, it’s well worth your time to read.
I’m not a big fan of reading legal decisions but this one is an exception. The arguments that Kramer addresses, clearly, succinctly and with an open-mindedness that refreshing, will be echoed again and again as this case moves forward. He is asking a few key questions. And to my untrained legal mind, he’s asking them directly of the U.S. Supreme Court using language – and cases – that echo a lot of what the justices have been saying recently.
Did the Supreme Court mean it when it said that prohibitions against interracial marriage – a case less formally known as “Loving,” for the plaintiff’s names – is discriminatory? This is aimed at Justice Thomas not because he is in an interracial marriage but because his most notable statements from the bench have been on the subject of racial discrimination. If the court hews to Loving, Kramer argues, it has little choice but to rule that laws banning same sex marriage are equally biased. That’s important, because many members of the current Supreme Court are big on precedent. Members of the court, particularly judge Antonin Scalia, have also spoken about the court’s need to uphold traditions. Here, too, Kramer was clear: Tradition is different from legal precedent. And in breaking with tradition, same-sex marriage is not breaking the law.

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