Politics Decision Day: Washington State’s Gay Marriage Ban is Upheld; Gov. Gregoire Appears to Endorse Civil Unions
[This was originally posted at 8 a.m.]
The Washington State Supreme Court just said no to gay marriage in this state.
The decision is here.
Justice Barbara A. Madsen, writing for a plurality of the five-justice majority, seems to have agreed with the recent decision from New York’s highest court, which ruled on July 7 that the state legislature there could rationally believe that denying marriage rights to same-sex couples protects children. Washington State’s 1998 “Defense of Marriage Act,” which limited marriage to one man and one woman, is in line with the Washington State Constitution, Madsen writes…
…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. Accordingly, there is no violation of the privileges and immunities clause.
Justice Mary Fairhurst authored the four-justice dissent, writing that the majority had engaged in “blatant discrimination”:
The plurality and concurrence condone blatant discrimination against Washington’s gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests. With the proper issue in mind—whether denying same-sex couples the right to marry will encourage procreation, marriage for individuals in relationships that result in children, or child rearing in households headed by opposite-sex parents—I would hold that there is no rational basis for denying same-sex couples the right to marry.
Here are the five justices who voted to uphold the state’s ban on gay marriage:
And here are the four justices who dissented from the majority opinion:
Gay rights supporters had demanded marriage rights on three separate constitutional grounds: That the 1998 “Defense of Marriage Act” violated the state constitution’s “privileges and immunities” clause (which essentially prohibits one group of citizens from being given privileges that another group of citizens don’t get); that DOMA also violated the state constitution’s “due process” clause (which says that no person shall be deprived of liberty without due process); and, finally, that DOMA violated the 1972 Equal Rights Amendment to the state constitution (which mandates that members of both genders be treated equally).
Madsen, writing for the plurality, rejected the “privileges and immunities” argument by contending that DOMA does not “grant a privilege or immunity to a favored minority class” (emphasis mine). What she appears to be saying is that if the state grants a privilege to the majority (in this case, heterosexuals), and has a “rational basis” for doing so, it’s not a problem.
She rejected the “due process” argument by contending that DOMA “bears a reasonable relationship to legitimate state interests — procreation and child-rearing,” and added that anyway, 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.” In other words, gay couples, in her mind, have an unreasonable expectation if they think their due process rights are being violated.
Finally, she rejected the Equal Rights Amendment argument by saying everyone is banned from engaging in state-certified gay marriages, therefore the ban does not represent unequal treatment. “DOMA treats both sexes the same,” she wrote. “Neither a man nor a woman may marry a person of the same sex.”
Religious conservatives, of course, will be elated at this decision. Meanwhile, the reaction from local liberal politicians has been one of dismay, coupled with a renewed promise to push for state recognition of gay unions in the legislature.
King County Executive Ron Sims, who helped start this whole legal process in 2004 by denying marriage licenses to same-sex couples in accordance with DOMA (and then simultaneously inviting a lawsuit to test DOMA’s constitutionality), called today’s ruling an “unwise decision” that is “reminiscent of Plessy v. Ferguson.” Sims continued:
Separate but equal was once the law of the land too, but eventually Plessy was overturned. If the legislature does not make changes first, I firmly believe that a future court will take up this issue again. And on that day, a wiser and more enlightened generation will overturn this ruling.
King County Deputy Prosecutor Bill Sherman, who is running in a crowded race for the state legislature in Seattle’s 43rd District, rushed out a press release saying he is “deeply disappointed” by the ruling. He promised to fight for “full marriage equality for same-sex couples” if he is elected. Expect every other candidate in this race for State Rep. Ed Murray’s House seat to do the same.
Meanwhile, Murray himself, who is running for an open seat in the state senate, seemed to promise he would introduce legislation that would give gays and lesbians the right to marry:
My heart goes out to the thousands of gay and lesbian couples in Washington State disappointed by today’s ruling. But now is not the time to be disappointed — it’s a time to recommit ourselves to the struggle ahead and to someday pass marriage equality in the state Legislature. I will introduce legislation to achieve that equality.
As Murray and others were preparing for an 11 a.m. downtown press conference on the decision, Justice Richard Sanders was on KOMO radio explaining his reasons for voting with the five-justice majority that upheld DOMA. “The court is supposed to uphold the constitution,” he said. “The constitution does not mandate gay marriage.” He continued:
Marriage is something the terms of which is determined by the legislature. They’ve banned consanguinity, you can’t marry someone who’s a family member, you cannot marry someone who’s underage. These are all legislative classifications and the legislature has also said marriage must be between a man and a woman. I could find no part of the Washington State Constitution that conflicts with the traditional legislative role of determining the terms of marriage.
Asked how he would vote on gay marriage if he himself were in the state legislature, Justice Sanders offered a libertarian response: “I’d probably be against it, but on the other hand… maybe the government shouldn’t be in the marriage business.”
Answering the argument that the current DOMA law is simply unfair to gays and lesbians, Justice Sanders said:
If we had a statute in this state that said gays and lesbians cannot get married, I think that would be problematic. But the statute says, “Only people of the opposite sex may get married.â€ť So [gays and lesbians] have as much of a right to get married as anyone.
Meanwhile, at the press conference in front of the King County Administration Building (a location chosen because it’s the place in this county where marriage license applications are processed), gay rights lawyers put on their best faces and took pains to point out what they said were a few silver linings in today’s decision.
Roger Leishman, an attorney for the ACLU, along with Jamie Pedersen, an attorney with Lambda Legal (and also a candidate in the 43rd District race), both pointed out that seven of nine Supreme Court justices seemed to have acknowledged today that lesbian and gay couples, and their children, face discrimination. “The Defense of Marriage Act doesn’t protect children—it harms children,” said Leishman, sounding a theme we’re likely to hear a lot more of as gay marriage supporters turn to the legislature for remedies.
Pedersen said that after reading through the justices’ decisions, “I think it’s fair to say that they see that the law that we have now is not a good law.” In an effort to change the law, Murray promised he would, if elected to the state senate this fall, introduce legislation that would allow for gay marriages. He added, however, that he did not expect it to pass next legislative session, or any time soon.
As they were speaking, Gov. Christine Gregoire was pushing out a press release of her own, offering her long promised, and long awaited thoughts on gay marriage. It’s an extremely carefully worded statement, but the only conclusion I can draw from it is that Gregoire endorses civil unions for gays and lesbians, not marriage.
As Governor, I do not believe the state should discriminate against any citizen. I also believe that personal religious beliefs are protected by our Constitution.
On the issue of gay marriage, Washington is a very diverse state and there are many strongly held opinions and personal feelings on this issue. I ask all Washingtonians to respect their fellow citizens. The Supreme Court has ruled and we must accept their decision whether we agree with it or not.
As to my personal beliefs, Mike and I received the sacrament of marriage in the Catholic faith. State government provided us with certain rights and responsibilities, but the state did not marry us.
I believe the state should provide these same rights and responsibilities to all citizens. I also believe the sacrament of marriage is between two people and their faith; it is not the business of the state.
Like I said, it’s a very carefully worded statement, and a bit cryptic, but the most I see in it is an endorsement of civil unions.