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A San Francisco judge's ruling last Monday striking down California's traditional marriage law was one of a flurry of decisions on the issue from state courts in the last 18 months. Some have said the laws are valid, some that they're not, but all have one thing in common: a disconnect between the law and the emotional reality of the issue. … What judges have not yet decided is whether laws that harm gays and lesbians should be treated like laws that discriminate against minorities and women, and are regularly overturned; or whether they should be considered in the same category as laws that draw distinctions between businesses or social groups, and can be justified on almost any grounds. "Courts seem willing to sidestep this issue" by declaring, like Kramer and Ling-Cohan, that the marriage laws are totally irrational, said Lawrence Levine, a professor at McGeorge School of Law in Sacramento. Nathaniel Persily, a law professor at the University of Pennsylvania, said a growing number of courts seemed to be willing to extend civil rights doctrines to gays and lesbians but hadn't yet acknowledged what they were doing. "Courts are applying a higher level of scrutiny to discrimination against gays while saying they're not," he said, citing the recent U.S. Supreme Court ruling overturning state sodomy laws and some of the state court marriage decisions.
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