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from Parenting & Family
Washington Supreme Court Upholds
State's Ban On Gay Marriage
By William Duncan, NARTH Legal Committee Chairman
July 26, 2006 -
This morning the Washington Supreme Court upheld the state's marriage law in a 5-4 decision. The majority position resulted in two separate opinions and three dissenting opinions were also filed.
ANDERSEN V. KING COUNTY
No. 75934-1
Washington Supreme Court
July 26, 2006
In two consolidated cases, separate groups of same-sex couples challenged the marriage laws of the state. Two trial courts had ruled that the state marriage laws were unconstitutional. On appeal, the Supreme Court ruled 5-4 in favor of the constitutionality of the marriage law in a decision resulting in six written opinions.
The plurality opened its opinion noting that the cases "require us to decide whether the legislature has the power to limit marriage in Washington State to same-sex couples. The state constitution and controlling case law compel us to answer 'yes.'" Since this case does not involve a "grant of positive favoritism to a minority class," the court applied traditional federal equal protection analysis to plaintiffs "privileges and immunities" claims under the state constitution. The plurality held that sexual orientation is not a suspect class because, although homosexuals have been discriminated against, they have not shown immutability and recent legislation shows that they "exercise increasing political power."
The plurality noted that Romer v. Evans and Lawrence v. Texas don't change this result. The plurality then held that there is no fundamental right to same-sex marriage because that status is not premised on history or tradition and U.S. Supreme Court precedent on fundamental rights has usually linked marriage to procreation.
Even though the Court's decision in Turner v. Safley "did not expressly link marriage to procreation" it did not signal a change in the definition of marriage as a fundamental right. Here Lawrence doesn't apply because it involved private sexual conduct and the Court said that case did not involve formal relationship recognition. "[A]lthough marriage has evolved, it has not included a history and tradition of same-sex marriage in this nation or in Washington State." The plurality further held that there is no federal constitutional authority for finding a fundamental right to marry a person of the same-sex.
The plurality said the appropriate analysis in this case was rational basis review. Plaintiffs had claimed that the marriage law was motivated by animus, but the plurality rejected this argument, noting for instance, that many who voted for the marriage law also voted in favor of creating protected class status for sexual orientation in the state discrimination law. "In assuming that everyone who voted for DOMA is a bigot, Justice Fairhurst's dissent is not only wrong, it sadly oversteps the bounds of judicial review." The plurality held that the subjective motivation of some legislators was not relevant when the statute advanced rational bases. The plurality noted that "[h]eterosexual couples are the only couples who can produce biological offspring of the couple." The fact that the classification is over- or under-inclusive does not mean that marriage lacks a rational basis.
The plurality found that "encouraging procreation between opposite-sex individuals within the framework of marriage is a legitimate government interest furthered by limiting marriage to opposite-sex couples." Also, "the legislature was entitled to believe that providing that only opposite-sex couples may marry will encourage procreation and child-rearing in a 'traditional' nuclear family where children tend to thrive." The plurality said that the legislature, rather than the court, held "the power to make public policy determinations" and that where these determinations did not affect a fundamental right or suspect class "that power is nearly limitless."
In regards to plaintiffs' privacy claim, the plurality held that absent a history of same-sex marriage "the citizens of Washington have not held a privacy interest in marriage that includes a right to marry a person of the same-sex." In regards to the sex discrimination claim, the plurality noted that men and women are treated identically by the marriage law and thus, the law does not constitute sex discrimination. The court supported its conclusion by referencing legislative history and ballot information for the state Equal Rights Amendment.
The plurality distinguished Loving v. Virginia because it involved purposeful "racial discrimination" while the marriage law does not involve sex discrimination at all. The plurality also held that there was no evidence that the marriage law was related to sex stereotyping. The plurality said its opinion did not address any constitutional issues related to marriage benefits but noted that same-sex couples are disadvantaged by a lack of benefits and suggested that the legislature consider the impact of the marriage law on these couples.
A concurring opinion said that plaintiffs had not met their burden of proving the statute unconstitutional. To this justice, if the court were to decide otherwise, "we would be usurping the function of the legislature or the people."
The more substantive concurrence was remarkably strong. It began by arguing that "[o]ur oath requires us to uphold the constitution and laws, not rewrite them." The concurrence noted that "[t]rial courts may reflect the dominant political ideas of their local community. We have two such decisions before us." The concurrence said the "opinions below were transparently result-oriented." "At its core, the claims involve not only the purported right to a 'marriage' with a person of the same sex but also a claim of raw judicial power to redefine public institutions such as marriage. . . . Though advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments (and the dissenters) cannot overcome the plain legal and constitutional principles supporting Washington's definition of marriage." The concurrence believed same-sex marriage is not a "privilege" under state constitutional analysis because it is not a fundamental right. The concurrence argued that there is no history to support the contrary proposition. The concurrence further said that the marriage law does not create a sexual orientation classification and even if it had, sexual orientation is not a suspect classification. "Conversely, where courts attempt to mandate novel changes in public policy through judicial decree, they erode the protections of our constitutions and frustrate the constitutional balance, which expressly includes the will of the people who must ratify constitutional amendments."
To the concurrence, the historical right to marry is opposite-sex and is linked to procreation. The concurrence noted that the U.S. Supreme Court has rejected the idea that same-sex marriage is a fundamental right in their summary dismissal of Baker v. Nelson. The concurrence said that Loving was not applicable because anti-miscegenation laws "infringed upon the union of one man and one woman by injecting racial status as a classification." The concurrence believed the "complementary nature of the sexes and the unique procreative capacity of one man and one woman as a reproductive unit provide one obvious and non-arbitrary basis for recognizing such marriage. The binary character of marriage exists first because there are two sexes."
Since only opposite-sex couples can experience unintended pregnancy, marriage "encourages couples to enter into a stable relationship prior to having children and to remain committed to one another in the relationship for the raising of children, planned or otherwise." The marriage law also advanced a rational basis of ensuring that the ability to define marriage "remain with the people of Washington" rather than with the courts of Washington or another state. The marriage law is also supported by a consideration of the ramifications flowing from the impact of various family formations on children: "female couple households are necessarily fatherless and male couple households are necessarily motherless. Each of these differences from the optimum mother/father setting for stable family life may offer distinctive disadvantages." Thus, the legislature could "rationally reject outright or conclude that further study is required before engaging in a dramatic alteration of our society's social fabric with profound negative or unforeseeable consequences."
The charge that Washington's marriage law is motivated by animus would also apply to all legislators and executives who have approved similar law and "[t]o state this paranoid proposition is to rebut it." The concurrence went further than the plurality in arguing that the state has a "compelling interest in marriage as the union of one man and one woman, particularly in light of its exclusive link to procreation and child rearing." In relation to the privacy claim, the concurrence noted that same-sex couples "are not prevented from having any sort of private relationship that they choose" and the right to privacy "is not a device for creating such rights of public recognition." As the concurrence closes, it suggests "[o]nly a judicial rewriting of 'fundamental principles' would result in marriage finding definition in the shifting sands of political correctness."
The main dissent garnered four votes. The dissent believed the marriage laws "do not rationally relate to or further any legitimate governmental interest" and create "a class-based distinction which grants opposite-sex couples certain and substantial 'privileges' while explicitly denying those same privileges to same-sex couples." To the dissent, even if the interests proffered by the state are legitimate these interests are not furthered by the definition of marriage. The question for the dissent is "would giving same-sex couples the same right that opposite-sex couples enjoy injure the State's interest in procreation and healthy child rearing?"
The dissent believes marriage laws do not encourage married couples to procreate, to stay married for the sake of children, or to rear children. Plus, the dissent thinks the exclusion of same-sex couples from marriage will hurt children raised by these couples. The dissent argues that the marriage law "was motivated solely by animus toward homosexuals." The dissent believed the plurality defined the fundamental right at issue too narrowly. The dissent also believed that the Loving decision recognized the right to marry a person of one's choice. For the dissent, the marriage law also infringed the "liberty to construct and define one's own family." So, this case "falls at the intersection between the fundamental right to marry and the fundamental liberty interest in making one's own personal decisions relating to intimate partners." The dissent argued that history and tradition should not be binding when they discriminate. The dissent thinks changing the definition of marriage would only affect same-sex couples.
Another dissent said the court should not rely on religious teachings regarding marriage and that the courts must protect those historically discriminated against. This judge said that homosexuals have been historically disadvantaged and continue to experience disadvantages. This opinion argues that the legislative history and language of the marriage law "reveals that it stems, in substantial part, from thinly-veiled animosity against a minority group, animosity that is rooted in moral and religious objections to same-sex relationships"and "reflects the legislature's intent to exclude an entire class of people from the institution of civil marriage." She also argued that "[m]oral judgment of a minority class of citizens is inherent in the DOMA." This dissent believed the marriage law constituted sex discrimination because it takes the sex of the parties into account. The opinion concludes: "Future generations of justices on this court and future generations of Washingtonians will undoubtedly look back on our holding today with regret and even shame."
The final dissent argued that the Washington "privileges and immunities" clause should "protect[] us against all governmental actions that create unmerited favoritism in granting fundamental personal rights" and should not be read as equivalent to federal equal protection analysis.
Additional Reading: Parenting and Family.
Updated: 8 February 2008
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