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Wednesday, July 26, 2006

Here’s the Money Graph from the ‘YES’ DOMA, ‘NO’ Gay Marriage Decision

Posted by on July 26 at 8:26 AM

…which I need a lawyer to help me understand. I think they’re saying, gays don’t have any special standing and therefore aren’t allowed to get married because DOMA promotes legitimate state interets like child rearing.

I don’t know. It all seems to beg the question of whether or not DOMA in itself is justified, but again, I’m not a lawyer.

In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution’s privileges and immunities clause that is applied under the federal constitution’s equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature’s decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes.2 Accordingly, there is no violation of the privileges and immunities clause. There also is no violation of the state due process clause. DOMA bears a reasonable relationship to legitimate state interests — procreation and child-rearing. Nor do we find DOMA invalid as a violation of privacy interests protected by article I, section 7 of the Washington State Constitution. The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex. Finally, DOMA does not violate the state constitution’s equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.

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Here's a great section from Justice Mary E. Fairhurst, who authored a dissenting opinion:

In a sweeping motion, the plurality accepts as legitimate the interests the
State puts forth for denying same-sex couples the right to marry--
encouraging procreation, encouraging marriage for individuals in
relationships that result in children, and encouraging the raising of
children in homes headed by opposite-sex parents.18 Plurality at 38-39, 41-
42, 48. Even if we accept the proffered interests as legitimate, the
plurality and the State fail to address or explain the issue this case
raises, that is, how those interests are furthered by denying same-sex
couples the right that heterosexual couples already enjoy.19 That failure
is in part due to the plurality's incorrect framing of the issue.
Contrary to the plurality's discussion, this case does not present the
issue of whether allowing opposite-sex couples the right to marry is
rationally related to the State's supposed interests in encouraging
procreation, marriage for relationships that result in children, and
traditional child rearing. Undoubtedly, state-sanctioned, opposite-sex
marriage has a conceivable rational basis--some opposite-sex couples can
procreate, and the State may have a legitimate interest in encouraging
procreation and family stability by allowing such couples to marry.
But DOMA in no way affects the right of opposite-sex couples to marry--the
only intent and effect of DOMA was to explicitly deny same-sex couples the
right to marry. Therefore, the question we are called upon to ask and
answer here, which the plurality fails to do, is how excluding committed
same-sex couples from the rights of civil marriage furthers any of the
interests that the State has put forth.20 Or, put another way, would giving same-sex couples the same right that opposite-sex couples enjoy injure the State's interest in procreation and healthy child rearing?
These inquiries do not constitute heightened scrutiny, nor do they
investigate overinclusiveness and underinclusiveness. This is rational
basis review, as this court has conducted before but, for reasons entirely unclear, refuses to do so now.

Under constitutional equal protection analysis, the standard of review changes depending on whether you are a member of a "suspect class" (race, ethnic origin), an "intermediate class" (gender), or some other class. If you are not in a suspect class or intermediate class, your claim gets the rational basis (that is, most deferential) review.

oh fuck the child rearing arguement

Sachi has it right.

It is very, very difficult to overturn a law if the rational basis standard of review is applied. The legislature gets every benefit of the doubt in that case, and even the most tenuous connections to the legisature's stated purposes have been upheld under rational basis review.

What this means, as far as I can tell, is that if the legislature chooses to recognize gay marriage, the OPPONENTS of gay marriage would face the same hurdles in trying to overturn that law. So all the more reason to push the legislature to overturn DOMA.

Would it be possible to avoid using the word "graph" for "paragraph"? I know it's the hip thing over at DailyKos or wherever, but it's misleading and illiterate.

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