Gay Marriage | Washington

Washington State Court Rules Against Gay Marriage

Wasahington_stateThe Washington Supreme Court ruled today that the state's Defense of Marriage Act does not violate the state constitution...

The Court decides to send the power to the legislature or the people. From Justice Madsen's lead opinion:

"The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer “yes,” and we therefore reverse the trial courts.

In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington."

State's high court upholds ban on gay marriage [seattlepi]

Read decisions, opinions, dissents...

More excerpts from the ruling:

"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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  1. Yet another disgusting ruling that hides behind children. They should be ashamed.

    Posted by: Blue | Jul 26, 2006 11:28:44 AM

  2. Thank you for coming to the Supreme Court. See marriage? Not for you. You can't have it. Not yours.

    Posted by: david | Jul 26, 2006 11:32:54 AM

  3. As I try desperately to find a silver lining here... sooner or later these 5 to 4 decisions are going to start going our way. Until then, support the GLBT rights organizations! Never give up.

    Posted by: Scott | Jul 26, 2006 11:40:34 AM

  4. And so it goes. NEVER GIVE UP!!!

    Posted by: tommy | Jul 26, 2006 11:49:38 AM

  5. It's only disgusting if we vote. I'm amazed by how many gay men don't bother. But then...count the responses even here. Except for Marriage and possibly a bashing, the items that get the most responses are about Madonna, this week's str8 boy, and this year's 'gay' icon (Kathy Griffith, e.g.) Many of the real news stories (you can tell because they don't inc. a picture with abs) I guess either don't get read, or simply aren't worth talking about when there's outrage to be had over Madonna's toilet seats or George Michael's obvious attempt to take control of the entire gay world by an angry off-the-cuff remark upon being busted cruising in a park! and with god forbid..AN UGLY GUY! HOW DARE HE!
    so....(sorry..I digress)
    If we don't vote..then, this doesn't matter, because we don't really and truly care. We're just wasting time between shopping trips.
    I'm sure many of the folks here do vote, but our percentages aren't significantly different from the rest of the country. And I wrote all this because there's going to be much chest thumping teeth gnashing and wailing 'n weeping...and how many of us are doing anything other than this to make a change. The HRC here in Palm Springs endorsed Mary Bono (again) and she's gonna get reelected and the fundraising parties at all the A-list gay homes for her are in full swing..and it's because she DID vote against the Amendment last week..the one that had no chance of passing. Nice safe vote. In every other way, she's a far right Republican. But..she's got a Hollywood name, she gets the A+++gays invites to inaugural balls, and she's somehow related to Cher. The HRC says they may endorse the Democratic candidate, but they haven't yet, nor have they talked to him yet, and besides, did I mention that Mary is somehow connected to Cher..and did you see how hot her son Chas is?! A far-right wing voting Republican who tosses us an unimportant bone is going to carry the gay vote in the fastest growing large voting district in the US. And she will vote to confirm every single solitary judicial nomination that Bushco throws her way. That folks is why wailing and weeping seems misplaced to me. We have to compare how much we SPENT on our vacations...and/or make a contact with that new dealer who's selling 8balls for under $150. Those seem to be the critical and important issues of the day.

    Posted by: psmike | Jul 26, 2006 12:00:20 PM

  6. Um, how can anyone in the right mind leave such a decision "up to the people"? That's what discrimination is! Oppression of a minority by a majority. Unbelievable!

    Posted by: Michael W. | Jul 26, 2006 12:01:49 PM

  7. The part that gets me is the whole "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"

    I didnt know that the human race was under threat of extinction.

    Also, it could be argued that there are more than enough living heterosexuals willing and able to procreate.

    How ESSENTIAL is marriage to the procreational process? Can't heterosexuals still produce babies without haveing to be pronounced man and wife?

    Also, if marriage is so "sacred", along with he "babies" and the "future", why not give limit these sacred babies to successful marriages only.

    Oh, because that would be too much like trying to tell people what to do with their lives....

    Posted by: Dexstarg | Jul 26, 2006 12:06:01 PM

  8. Not good news.

    Now it's not looking so good for my homestate of NJ. The state court might follow suit and hitch with the trend.

    The only silver lining I can see here is that it's impetus for all of us to stop relying on courts and mobilize and motivate in every way we can to take this issue to state legislatures and the voters who stock them.

    Posted by: Bobby Alexander | Jul 26, 2006 12:16:55 PM

  9. Maybe it is smarter to put our resources into fighting fto be recognized by courts as an actual minority that deserves protection against mere "rational basis" discrimination.

    Since the courts keep puhing away the gay marriage issue, saying legislatures can discriminate against gays on the rational basis that straights are better for children, this line of action would eventually nullify that argument, because they would need more than 'rational basis; based on 'common sense." Plus, it makes more sense to confront issues of discrimination directly, rather than trying to fight for equal recognition indirectly through marriage.

    Posted by: GBM | Jul 26, 2006 12:18:11 PM

  10. GOOD, maybe now the Democrats will win some elections this fall. Sorry guys but another state Supreme Court overturning a law recently passed by the legislature (which would have permitted out-of-staters to marry this time)... that is worth millions and millions of votes for the Republicans later this fall. This is a blessing in disguise. The courts are NOT the path to lasting gay marriages that society will accept. If you think I'm wrong read some analysis of why Kerry lost Ohio, and therefore the presidency, in 04.

    Posted by: Dave | Jul 26, 2006 12:33:25 PM

  11. I feel 2 ways on this:

    It stinks that the courts no longer hold up the rights of the minority (in # I mean) vs the majority opinion. The notion of equal treatment for all seems to have fallen by the wayside.

    But...I also see the merit of working hard to change minds. The struggles of the civil rights movement was about achieving equality under the law AND changing minds. Have we really done enough to change minds? I was not out at work for the longest time. I came out at work 2 years ago. Mind you, there are a handful of people who simply will not talk to me now and go out of their way to avoid being in a space with me. But the rest I've managed to raise awareness and attempted to set a good example that I'm a normal nutball like everyone else! I'll NEVER sway the people who avoid me now - all of whom are either severely religious persons or uncomfortable men - but I don't give them an inch in their prejudice. Just because you don't look me in the eye doesn't mean I'll skip saying Hello.

    So I think we have to keep up 'the fight' and hope that the Republicans haven't already stacked the courts - though I fear they have. And we have to live true to ourselves and to others. We have to come out, be proud, and live with dignity in the face of all the enemies toss us. Easy to say, tough to do, but necessary if we ever want to reach the other side.

    Posted by: Ben | Jul 26, 2006 12:39:26 PM

  12. Quoting:
    "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."

    Except it also doesn't treat both sexes the same:
    A woman has the right to marry a man, but a man does not. Conversely, a man has the right to marry a woman, but a woman does not.

    This is one of the central arguments for same-sex marriage: it's discrimination on the basis of sex.

    I'll take a look at the rest of the decisions and see if some judge pointed that out. I have to hope that one of the dissenting opinions at least mentioned this line of thought.

    And yes, it's depressing that they ruled this way but maybe there's some hope in the bulk of the decision we can cling to. And there's always New Jersey.

    I'm so glad I live in Massachusetts.

    Posted by: Lane | Jul 26, 2006 12:47:21 PM

  13. Actually, this ruling is a bit more nuanced than it seems at first glance. Yes, it's disappointing that the court didn't impose equal rights, but if you look at other states where courts have done that, the backlash has been so terrific that constitutional bans have been put in place. Constitutional bans will take one or two generations to reverse. In general, we get a better result from legislative than from judicial action. In states where constitutional bans have not been passed (e.g. Washington State), there is a greater likelihood that equal marriage rights will be legislated within the next 5-10 years. This will be a more durable, lasting way to achieve equality. I'm not saying that the courts don't have a role to play, but for gay people the results are better if legislatures act instead of courts. (There is also the problem that a lot of gung-ho GLBT activists litigate cases that create bad case law--and bad precedents are actually worse for GLBT rights in the long run, so cases that are litigated should be chosen judiciously.) In states where constitutional bans are in place, we're looking at 20-40 years of discrimination. In states like Washington without, we're looking at equality within the next decade. Note that the Washington Supreme Court's ruling today also creates a strong and explicit precedent for the legal validity of marriage equality *should the legislature adopt it.* In other states, courts have not created precedents as strong as this. So the WA court basically opened the door for legislative action that will be hard to contest after it passes. The fight is not over, but this is not the end of the world.

    Posted by: bubu | Jul 26, 2006 1:14:19 PM

  14. Agree with DAVE.

    This ruling takes "gay marriage" further off (hot)Karl Rove's plate of ammo against Dems.

    However, let's not forget, Dems have never given us marriage either.

    Can anyone say 3rd Party?

    Posted by: dc-20008 | Jul 26, 2006 1:14:40 PM

  15. Wow, I had a few observations to share but GBM and BEN took the words right out of my mouth. Yeah the message of this ruling sucks but I think, at this time and in the long run, it is better for us than a victory.

    The wind is taken out of the right-wing’s sails, saving us an ugly and counterproductive backlash that could affect the midterm election and future advancements. We MUST continue changing the hearts and minds of our families, friends and neighbors, one person at a time.

    We will win this fight but we will not win it effectively through the courts at this point in time. Once we win legislative battles and referenda ballots in a couple of states, then court victories will be effective in advancing our just cause.

    It may suck ideally but it's life in the real world.

    Posted by: Zeke | Jul 26, 2006 1:43:14 PM

  16. 3rd party? How I wish that were possible, yet it would be virtually impossible for a third party to win any election since the Dems and Repugs have so much control over government at every level. Splitting the Democratic party would be a bad thing, in that the schism would only happen on our side and the GOP would have an advantage in their unity. That being said, I'd love to see our democracy come alive with a multi-party system like most other democracies in the world have.

    I don't think that we can afford to wait a couple more generations in the hope that we can "win" more hearts and minds to our cause. Yes, younger people are much more accepting of gays and lesbians than old timers, but the real point is that NO ONE should EVER have the chance to vote on whether or not to extend civil rights to someone else. That is a textbook example of tyrrany by the majority. Virtually none of the state DOMA's or anti-gay Constitutional amendments give any consideration or accomodation to us. In most states where amendments have passed, the language is such that both civil unions AND marriage are denied. What happened to the notion of majority rule, with respect to the minority?

    We are talking about our lives here, not simple inconveniences. Our families and property are at risk and we are being denied access to the same rights and privileges enjoyed by heterosexuals. Straights who have been married and divorced multiple times got the chance to deny us the opportunity to marry even once. That is simply not fair and is unacceptable in a modern society.

    We will never win the hearts and minds of religious fundamentalists. So long as the fight goes on our opponents will use our struggle as a means of exploiting the hate, fears and prejudices of their base to motivate them against us and to maintain their hold on power. We must take this tool out of the GOP arsenal once and for all or else we stand to lose every election and every vote for progress. Homophobia will win out over fairness each and every time.

    Posted by: Jonathon | Jul 26, 2006 1:43:16 PM

  17. It's a bit subtle, but did the WSC say that the legislature had a "rational" for the man-women marriage act or a "rational basis in fact"? In other words, can they knock down laws that have no rational basis in fact? For example, let's say they passed a law saying that you can't own dogs because dog owning would increase traffic accidents. Now, there is no rational basis for this law, but if you took it to the WSC could they knock it down or not? The knub: there may be no rational basis in fact to ban same-sex marriage but no constitutional provision for removing irrational laws either. Finally, can any unstated rational provision be allowed? For example, if they banned dog owning without stating why, must the WSC find no rational basis for the law before knocking it down? They might rule, for example, that dog owning is a threat to public safety, which has some basis in fact, in which case you could get a same-sex ban on the narrowest of grounds; in which case you then have to argue on public interest or minority rights grounds, which is always a crapshoot for gay issues. A lot of times, they do judge-shopping and win in lower courts only to lose on appeal. The plaintiffs should have been more cynical of their chances, though the PR might be mobilizing.

    Posted by: Anon | Jul 26, 2006 1:43:33 PM

  18. Yes true these are our Rights and our lives, but keep in mind also, Washington DC residents, citizens of the USA, have no representation in the US Congress.

    Taxation w/o representation. Something as basic as a Vote is denied us.

    Just say this to remind all of us that not only Gays are "ripped off" in this great country.

    Posted by: dc-20008 | Jul 26, 2006 1:58:25 PM

  19. Seattleite here -- The assumption, as some seem to be making, that Dems in control changes everything regarding this issue, is incorrect. In Washington State, Dems are in control of both houses of the legislature and the governorship. I don't know how it works in other states, but here we also elect the members of the state Supreme Court (non-partisan).

    Since elected officials have no "fire in the belly" on this issue, the only real hope is through the people-driven initiative process, a process of which Washington State residents are rather fond. Regardless of party affiliation, most Washingtonians are democrats (with a small 'd') that way. However, as others have indicated, leaving one's personal rights to the whim of other citizens, seems hardly American in a conservative or liberal sense.

    Posted by: KJ | Jul 26, 2006 2:10:24 PM

  20. Anon,

    "Rational basis" is a level of scrutiny that courts apply to cases dealing with discrimination, based on the Equal Protection Clause. Discrimination cases dealing with race receive the highest review (Strict Scrutiny), those dealing with gender receive a 'moderate' amount of scrutiny (Middle-Tier Scrutiny), and Rational Basis is reserved for cases dealing with "anything else" such as gays, the elderly, the handicapped, etc.

    So judges just have to find the defenses argument to be "reasonable" and not entirely arbitrary, which is a very low standard for review. Judges might find the dog arguments reasonable enough, though lawyers would argue that "dog-owners" are a category of people to be protect by the Equal Protection Clause, but who knows, I am no lawyer.

    This is all to say that until courts or legislatures recognize that discriminating on the basis of sexual orientation is as harmful as discriminating against gender or even race, gays rights can continue to be hampered by these rational basis reviews.

    Posted by: GBM | Jul 26, 2006 2:13:24 PM

  21. Last sentence of middle paragraph should read: "...though I'm not sure if lawyers would argue that "dog-owners" are a category of people to be protected by the Equal Protection Clause..."

    Posted by: GBM | Jul 26, 2006 2:17:08 PM

  22. Excellent questions and excellent points ANON!

    Jonathon, I agree with your statement 100% and I share your passion. It is completely unacceptable that the majority should ever have the power to deny rights to any minority. I also believe that this is clearly unconstitutional. However, that doesn't change the fact that reasonability and constitutional precepts are being ignored and majority rule over minority rights is being allowed. It also doesn't change the fact that the majority of Americans have been stirred into a "protect marriage from the fags" frenzy. My comments above are meant to reflect practicality and pragmatism, not the ideal of how things SHOULD be. We should continue our fight, even in the courts, but more importantly on the ground with everyone around us.

    I lied when I said I agree with your statement 100%. It’s more like 99% because I believe that religious fundamentalists’ minds CAN be changed. I have done it MANY times. I have changed the minds of people that other people wrote off as hopeless. How? The MOST important thing is by being OUT, unashamed and proud. Then I try to reach out to people, get to know them, and more importantly help them to get to KNOW me. I show them first hand that Jerry Falwell knows about as much about who gay people are, what they think and how they feel as Fred Phelps knows about what it means to be a Christian. I change peoples’ perceptions by having the courage to confront, rather than ignore, ignorant and homophobic statements and prejudice EVERY time I see or hear it. I change peoples’ opinions by talking TO and WITH, rather than AT them, having productive discussions rather than counterproductive arguments.

    I know from experience that this REALLY works. When my family (partner and son) and I moved to my neighborhood in Tampa five years ago, I would bet most of my neighbors were not gay friendly and certainly weren’t accepting of marriage equality. I reached out to them on a personal level. At first they thought I was strange, not because I’m gay, but because I was so friendly with my neighbors (it’s a Mississippi thing). Now I’ve got ALL the men on my block hanging out for a couple of beers and “shootin the shit” daily. I swear it’s like a scene out of “King of the Hill” (yup!.....uh huh!) The guys used to call each other “faggot” at the drop of a hat. I confronted them and explained that when they use that language they disrespect me, their friend. Now, no one EVER uses that word around me. More importantly a couple of them have told me how they caught themselves using it when I wasn’t around and corrected themselves or even challenged others for using the word. These guys are Baptist and Pentecostals, White, Black and Latin. Whereas they used to cringe and tell me not to talk about gay things, now they joke with me and even ask me questions about my relationship. One of them, a Cuban man, invited me over to watch a Cuban film with him and his family. I was shocked to see that it had a gay theme and was even more shocked to see him in tears at the end of the movie. He says it is his favorite movie. I can only wonder if he’s reaching out to me from the closet.

    Now ALL of my neighbors are very gay positive and some of them have told me that they now support gay marriage. This experience has been one of the most awesome and rewarding things that I have ever experienced.

    The fact of the matter is people have a really hard time supporting discrimination against people that they like, love and/or respect. We can hardly fault people for not understanding who we are and why marriage is important to us if we sit on bar stools complaining about court decisions rather than sharing our lives with those closest to us.

    One point is critical to remember in all of this; people are influenced by people that they can relate to. By that I mean a Southern Baptist Republican from Georgia is not going to be swayed by a stranger from New York City that sashays up to him in Chelsea drag and with a lisp. Ain’t gonna happen! His prejudice may not be right but it’s reality. He is going to relate better to a Mississippi redneck like me who speaks his language and shares his culture.

    My point in this ridiculously long and wandering post is; if every gay person in America reached out to his circle of friends, family and co-workers we would have a revolution in this country. Sure there would be some die-hards that wouldn’t change if Jesus Himself came down in drag with a feather boa. Don’t worry about them. Keep talking to them, but don’t worry about them. Most people have a sense of fairness and compassion and will demonstrate it with a little bit of education about, and familiarity with, gay and lesbian people.

    Sorry for getting carried away again. I swear I try do short, to the point post. I guess it's just not in me!

    Posted by: Zeke | Jul 26, 2006 3:00:19 PM

  23. >>>there is a greater likelihood that equal marriage rights will be legislated within the next 5-10 years. This will be a more durable, lasting way to achieve equality.<<<

    Or maintain the status quo. Most civil rights issues of the 20th century were forwarded only with the direct intervention of the courts, not legislation. I don't see any particular backsliding on, say, segregation. So I'm not sure where this idea that "legislation is more durable" came from. Although, truth be told, anti-sodomy laws sure stuck around a long time until, well, Lawrence vs Texas.

    The demonizing of the courts and the canard "activist judges" or "legislating from the bench" is not that recent an innovation, but it has most definitely been successfully and repeatedly used by the Republican party lately. The courts often seem to be relied on by the left as a way to make the right swallow a bitter pill, but this largely comes from the fact that the majority is set up in such a way as to permit the continuation of the status quo, because no one is particularly motivated in any sizeable block to stand for a change.

    Of course, once upon a time, Democrats would show more backbone in terms of wider support for equal rights. Mayor Gavin of SF had it right when he said this would continue to be a wedge issue so long as the Democrats let it.

    I'm all for waiting to see if a state legislature can pass this, but that doesn't change the fact that some of this logic, especially that tied to procreation, is dicey at best, given that non-procreative man/woman couples may still legally wed.

    Posted by: A.G. | Jul 26, 2006 3:05:47 PM

  24. A.G., you're right. Civil rights advancements have been almost exclusively forwarded by the courts. However, no previous civil rights promotion has ever stirred the nationwide, cross race, cross gender and cross culture backlash that marriage equality has. At best, a small handful of states have a majority of people who support it. Even with African-American civil rights, most of Americans, outside of the South, supported it. Even in Southern states there was more support than there is for gay marriage. As far as I know there was never an attempt to amend the national, or even any state constitution to maintain segregation. The most important factor to consider in this struggle is not the court decisions but the durability of these decisions. Court rulings are worthless, and even counterproductive, if they only result in lifelong, iron-clad Constitutional amendments that make the ruling moot and future constitutional considerations inadmissible.

    Even though we are talking about civil rights in both cases, that is where the similarities end. It is truly an "apples and oranges" comparison when considering the most effective and timely strategy to achieve our goals.

    Posted by: Zeke | Jul 26, 2006 3:29:13 PM

  25. Don't expect elected or appointed judges and politicians to stick their necks out for gays, who have not vehemently and wisely put forth a strategy and argument DIRECTLY to everyday Americans why they should support gay marriage and why gay marriage is a good thing and equal to heterosexual marriage. Gays are largely indifferent to the issue, or in the case of many, dodge the issue by appealing to arguments like "it will foul the Constitution" or "there are more important things out there than banning gay marriage." We have lost because we are too lazy and undisciplined to win. Moreover, what good is it to get a favorable court decision, when the people will put it to a referendum and undo it like they have in Hawaii and soon may do in Massachusetts?

    Posted by: Javier | Jul 26, 2006 3:29:29 PM

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