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Washington Court Says No to Gay Marriage
by Bob Roehr
2006-08-02

This article shared 3132 times since Wed Aug 2, 2006
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On July 26, the Washington Supreme Court declared that the state's ban on same-sex marriage is constitutional. The nine-member court splintered badly on the issue, writing a ruling decision, two majority concurrences and three dissents.

The governing opinion, by Justice Barbara A. Madsen, began with a defensive civics lesson on the role of the courts and the legislature—with personal views not interfering with the work of the former—as well as a few digs at the dissenters.

It then went on to find that the 1998 Washington Defense of Marriage Act ( DOMA ) 'bears a reasonable relationship to legitimate state interests—procreation and child-rearing.'

Nor is it a violation of the state constitution's equal rights provision; 'neither a man nor a woman may marry a person of the same sex … men and women are treated identically under DOMA.'

And it essentially turned to polling results to decide on the protection of individual rights when it said, 'community standards at this time do not show a societal commitment to inclusion of same-sex marriage as part of the fundamental right to marry.'

Madsen and the two justices who joined in her opinion acknowledged at length the protections and benefits that accrue to heterosexual couples who marry and that same-sex couples must undertake burdensome efforts to try to approximate some of those same protections.

But it seemed that all they could offer were crocodile tears when they advised, 'Given the clear hardship faced by same-sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.' Legislative leaders did not exactly rush to embrace the idea.

Justice James M. Johnson wrote an extended concurrence in which the principal aim was to demonstrate that the first three justices were not harsh enough on gays. He was joined by a fourth justice.

The principal dissent was written by Justice Mary E. Fairhurst and joined by three others. It said 'there is no rational basis for denying same-sex couples the right to marry. ... The right to marry the person of one's choice is a fundamental right. The plurality uses the excuse of deference to the legislature to perpetuate the existence of an unconstitutional and unjust law.'

Fairhurst went on to say, 'DOMA creates a class-based distinction which grants opposite-sex couples certain and substantial 'privileges' while explicitly denying those same privileges to same-sex couples.' Assuming that there is a legitimate state interest in passing marriage laws that encourage procreation, 'there is no logical way that denying the right to marry to same-sex couples will encourage heterosexual couples to procreate with greater frequency … denial of the right to marry will certainly harm children of same-sex couples,' she added.

Fairhurst chided the plurality; 'The relevant question is not whether same-sex marriage is so rooted in our traditions that it is a fundamental right, but whether the freedom to choose one's own life partner is so rooted in our traditions.'

'We are disappointed but not discouraged—this is a civil rights movement and time is on our side,' said Jennifer C. Pizer, the lead attorney on the case with Lambda Legal. 'History has shown that in cases of this magnitude the opinions of the dissenting justices later become the law of the land.'

Dan Savage, sex columnist and editor of the Seattle alternative weekly The Stranger, wrote in a column in the New York Times, 'A perverse cruelty characterizes both [ the Washington and New York ] decisions. The courts ruled, essentially, that making my child's life less secure somehow makes the life of a child with straight parents more secure.'

'As the dissent pointed out, the plurality ( let alone the more extreme concurring justices ) turned a willfully blind eye to the animus beneath this exclusion and the discrimination it inflicts and perpetuates' on gay couples, wrote Evan Wolfson in The Stranger. He is executive director of Freedom to Marry, the national organization advocating for marriage equality.

Wolfson took heart from the fact, 'We went from zero votes the last tie Washington couples seeking marriage appeared before the state supreme court to 5-4 now…even as our opponents use against us everything they have—a president, a pope, Rovian bands of attackers state by state and millions of dollars from the antigay industry.'

MARRIAGE ELSEWHERE

Elsewhere, the American Civil Liberties Union ( ACLU ) has asked the full Federal Court of Appeals for the Eighth Circuit to review the July 14 ruling by a three-judge that upheld a Nebraska constitutional amendment that discriminates against same-sex couples.

'The panel that decided this case just ignored the U.S. Supreme Court, which has ruled that states can't pass laws just to discriminate against gay people,' said Matt Coles, director of ACLU's LGBT Rights Project. The amendment bars not only marriage but all other types of relationship recognition for same-sex couples.

'This case has never been about marriage. It is about whether a state can completely block gay people from the political process,' said Jon Davidson at Lambda Legal.

In Maryland, that state's highest court has agreed to bypass an intermediary level and hear the appeal of a district court decision that struck down a state law limiting marriage to between a man and a woman. That January ruling has been stayed pending appeal.

The July 26 order by the appeals court places the case on the docket for arguments in December.


This article shared 3132 times since Wed Aug 2, 2006
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