LEGAL OUTCOME COULD HANG ON SEX-BIAS ISSUE: From the San Francisco Chronicle

Defenders of California's ban on same-sex marriage, declared unconstitutional by a San Francisco judge, are setting their sights on a small but crucial part of the ruling as they prepare their appeals: the judge's conclusion that the law amounts to sex discrimination. ...

Nevertheless, Liberty Counsel attorney Mathew Staver, who represents the Campaign for California Families, said Tuesday he would again ask the judge to consider evidence that children fare best when raised by a married mother and father. Kramer said during hearings last fall that conflicting claims about families were irrelevant to the constitutionality of the law. ...

Federal courts sometimes uphold laws that treat men and women differently, but California courts since 1971 have considered sex on a par with race, making it nearly impossible for the government to justify discrimination on either ground.

A finding of race or sex discrimination is "almost invariably fatal to the statute," said Steven Hirsch, an appellate specialist with Keker & Van Nest in San Francisco.

The potential problem in Kramer's analysis, said Hastings' [law professor Vikram] Amar, is that the marriage law "is not motivated by a hierarchy between men and women," unlike the law against interracial marriage, which was rooted in white supremacy.

"It isn't the presumed inferiority of either gender, men or women, that's driving same-sex marriage laws," said Hirsch, who disapproves of such laws. "It's the presumed inferiority of gay people. So what's really at issue here may not be gender discrimination but sexual orientation discrimination." ...

Kramer ruled Monday that the marriage law lacked any rational justification, saying tradition does not justify discrimination, domestic partners are not spouses, and marriage has other purposes besides child-rearing. That may be "the most vulnerable part of his argument," said Amar.

For example, he said, a court could find that the state had a rational basis for "wanting to place a special stamp of approval on certain (relationships) without connoting disapproval of others."

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posted by Eve at 5:25 PM | link

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