Ruling out compromise.(changing state marriage law)

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Massachusetts, Kramer found the law's definition of marriage as the union of a man and a woman to be not just wrong or outdated, but irrational.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 ...