Ruling out compromise.

California superior-court judge Richard Kramer has struck down the traditional marriage laws of his state, which were reaffirmed in a referendum in 2000. Like the Supreme Judicial Court of Massachusetts, Kramer found the law's definition of marriage as the union of a man and a woman to be not just wrong or outdated, but irrational. Neither the Massachusetts bench nor Kramer believes that the reasons for holding the view of marriage that everyone has held for millennia have been defeated by other, better reasons. They believe that there were no good reasons for regarding marriage as a male-female union in the first place. Thus, they have held that the common understanding of marriage cannot survive even the lowest level of scrutiny a judge can bring to bear on a statute.

But Kramer adds a few new twists of his own. The Massachusetts court rejected the idea that marriage should be defined as the union of a man and a woman because marriage has something to do with procreation. Since the culture and the law had weakened the links between marriage and procreation, the court concluded that 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: The fact that the law and the culture contain inconsistent views of marriage does not license judges to resolve the inconsistency by throwing out those elements they dislike.

Kramer, however, did not even perform this perfunctory analysis. He merely 1) found that the California courts have not recognized procreation as a purpose of the marriage laws, 2) observed 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) found that procreation--therefore!--has nothing to do with any legitimate purpose of the marriage laws.

This type of pseudo-rationalism would undermine any marriage law at all. Consider the idea--tossed around in recent months by libertarian, liberal, and even some conservative thinkers--that we should "privatize marriage." The law would no longer recognize marriage as such but rather recognize whatever contracts people choose to make. If someone were to fight in the courts for this agenda, what would Kramer have to say to him?

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.

Kramer's next twist was to hold that the marriage laws are a form of sex discrimination: Joe can marry Peggy but Susan can't. Judges get to subject laws that discriminate on the basis of sex to stricter scrutiny than other laws. So even if Kramer were to concede that there might be some rational basis for traditional marriage laws--which he does not--he could still strike them down.

He also held that the various measures California legislators had taken to help same-sex couples amounted to a "separate but equal" status for homosexuals. If the state had no objection to recognizing their relationships, it could have no reason for not according them the full status of marriage. In other words: Californians' attempt to strike a compromise became a reason to undo the compromise.

So opponents of same-sex marriage are on (further) notice: Compromise is folly. The judges imposing same-sex marriage are not interested in democratic give and take. It's not just that Kramer, and the Massachusetts judges, overturned the laws passed by the people and their elected representatives. They also wrote over the constitutions the people of those states ratified. There is no plausible argument that any provision of either state's 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.

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 grace. The only way to stop it is through a federal constitutional amendment.