Gay-marriage ruling headed for appeals

Superior Court Judge Richard Kramer's ruling Monday that struck down California's ban on same-sex marriage was a momentous victory for the gay rights movement, but it may not mean much in the long run.

The ruling will be appealed to the state Court of Appeal in San Francisco and proceed from there to the state Supreme Court, probably sometime next year. Under standard legal doctrines, each of those courts will take an independent look at the case, paying little regard to any previous ruling.

"These are questions of law," said Jesse Choper, professor of constitutional law at the University of California, Berkeley's Boalt Hall School of Law. Because Kramer heard no witnesses, made no factual findings and based his ruling solely on his analysis of the law and the state Constitution, Choper said, higher courts are not required to give any weight to his conclusions before reaching their own.

The state Supreme Court has shown no eagerness to rule on the validity of the law that defines marriage as a union of a man and a woman. When the court overturned San Francisco Mayor Gavin Newsom's order authorizing same-sex marriages last year, it did so on the narrowest possible grounds — that Newsom had no authority to override a state law on his own — and avoided tipping its hand on the underlying constitutional issue, which it left to lower courts.

It is a court "even more cautious than it is conservative," said San Francisco attorney Dennis Maio, who spent 20 years on the high court's staff. He declined to predict the outcome once it gets to the state's Supreme Court but said one question the justices are likely to ask themselves is, "Are we going ahead of society?"

As the case begins the appeal process, one central issue is sure to be Kramer's eye-catching conclusion that there is no rational basis for the marriage law.

The judge said the state's rationale — that California can preserve the traditional definition of marriage while offering marriage-like benefits to same-sex domestic partners — was an empty vessel. Tradition cannot justify discrimination, he said, and the new domestic partner law is the kind of "separate but equal" approach that the U.S. Supreme Court repudiated in its landmark 1954 Brown vs. Board of Education school segregation case.

Maio said Kramer might have given short shrift to the argument that the state has met its obligation of equality with the domestic partner law.