Rambus (RMBS)

[smd1234]

interesting, a judge with big cahones (SEE ANTITRUST CASES AT BOTTOM):

The Honorable Richard A. Kramer was born in Brookline, Massachusetts on July 22, 1947 and graduated from the University of Southern California Law School in 1972 as a Doctor of Jurisprudence, following a Bachelor of Arts, magna cum laude degree in political science in 1969. He was appointed to the San Fransisco superior court by governor Pete Wilson in 1996. Prior to this appointment, he was a civil litigator representing the banking industry. Kramer has been recognized for his ability to handle many complex cases, leading to California's Judicial Council to appoint him as the same-sex "Marriage Cases" coordinator.

Kramer made headlines in March 2005 when he struck down Proposition 22, a California ballot initiative defining marriage as between a man and a woman on the grounds that it denies the "basic human right to marry a person of one's choice." In his decision, he pointed out 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 that "California's enactment of rights for same-sex couples belies any argument that the State would have a legitimate interest in denying marriage," concluding that "there is no rational state interest in denying them the rites of marriage as well."

According to a San Francisco Chronicle news article, "A crucial point of the ruling was the judge's conclusion that the marriage law amounts to sex discrimination, a finding that is enough to overturn virtually any California law under the state's strict constitutional standard. The law makes "the gender of the intended spouse ... the sole determining factor" of the legality of a marriage, Kramer said; he said claims by the law's defenders that the law treats men and women equally were no more valid than earlier claims that anti-interracial marriage laws treated whites and blacks equally."

The decision will have no immediate effect during the appeals process. California governor Arnold Schwarzenegger supports the status quo of domestic partnership rights, but has said that he will abide by the state Supreme Court's decision and not push any constitutional amendment to override the courts.

Kramer, in the words of a National Review editorial <SEE BELOW>, "finds the law's definition of marriage as the union of a man and a woman not just wrong or outdated but irrational... He has never heard of a possible reason to regard marriage as a male-female union. That view of marriage... cannot survive even the lowest level of scrutiny a judge can bring to bear on a statute." National Review argued, "This kind of pseudo-rationalism would undermine any marriage law at all" because not all marriages fulfill the roles for which they were designed. The magazine considers the decision to be anti-democratic judicial activism. "There is no plausible argument that any provision of the state constitution was originally understood to require same-sex marriage," argues the editorial.

Andrew Sullivan concedes that the decision was judicial activism, with which he is somewhat uncomfortable. Nevertheless, he applauded the decision in his blog, noting:

"when state constitutions insist upon it, you have to have a much stronger argument to keep a minority disenfranchised than the current anti-marriage forces have been able to marshall. Tradition? So was the ban on inter-racial marriage. Procreation? Non-procreative straight couples can get civil licenses. The potential collapse of civilization? Impossible to prove or even argue convincingly. Once you have accepted that there is no moral difference between homosexuality and heterosexuality, the arguments against same-sex marriage collapse. And since the only coherent moral difference is the likelihood of non-procreative sex, and that is now the norm in traditional heterosexual civil marriage, there is no moral case against allowing gay couples to have civil marriage. The rest is fear and prejudice and religious conviction. None should have a place as a legal argument in the courts."

Sullivan also noted: "Kramer is not a radical. He's a Catholic Republican appointed by a former Republican governor."

Finally, Sullivan counters the argument that the decision undermines all marriage law thus:

"No one is using any of these actual, not-always-present aspects of civil marriage to deny anyone's right to marry. No one, so far as I know, is saying that we should bar couples from civil marriages because they are not in love or not cohabiting or any other criterion. But they are saying that couples [that] do not or cannot procreate should be barred from marriage - on those grounds alone. All Kramer is saying is that current marriage laws have no such exception, and that using that exception to exclude one group of non-procreative couples (the gay ones) rather than another non-procreative group (the straight ones) makes no logical sense. Especially when many lesbian (and some gay ones) marriages have biological children, and some straight ones have adopted kids."

EDITORIAL:
=============================
March 16, 2005, 7:48 a.m.
Ruling by Ruling

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.

http://www.nationalreview.com/editorial/editors200503160748.asp