07/26/2006
Washington State Court Rules Against Gay Marriage
The 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."
Posted 11:24 AM EST by Andy Towle in Gay Marriage, Washington | Permalink
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Wow... 54 comments by ass-kissing fags about Lance and his new butt buddy Reichen.
Only 25 about Washington denying marriage rights based not on the state constitution, but just on a state law.
What priorities.
Posted by: Marcus | Jul 26, 2006 8:24:01 PM
While it is true that controversial issues *in the United States* are often promoted primarily by the courts (e.g. desegregation, abortion, etc.), these court-based solutions have also remained hot as fire and raging controversies. This is because legislative solutions to these issues are preferable when- and wherever possible. If you look at gay rights in other countries, e.g. Scandinavia and the Low Countries, for instance, you see that there the parliaments created equality without help from the courts. The legislative approach is always more gradual (first civil unions, then marriage), but that is the way of legislatures. When courts get involved, what happens is it galvanizes the opposition. If you look at abortion in the U.S. and in Western Europe, note the striking difference: Europeans have addressed legal abortion legislatively, while in the U.S. we have addressed abortion judicially. In Europe, there is really hardly any controversy any more about abortion (at least not on the scale here), but in the U.S. we have a huge culture war going on about it even now. The argument is correct that civil rights like women's right to choose have traditionally been advanced in this country by the courts, and the courts are to be applauded for that. But that doesn't mean that court-based solutions are ideal. Whenever LEGISLATURES can solve the problem, that is much better and more enduring, as we can see from Europe--and Canada. It is undeniable that the court-based solutions more often lead to constitutional amendments that will truly take two generations or more to get reversed (because constitutions are hard to change). I think fighting for rights through legislative means will be a much better solution for the long term. So, the upside to the Washington State ruling is that it is incumbent on the all-Democratic legislature now to do the right thing. So: if you live in Washington, e-mail your legislator now! And if you live elsewhere, let your legislators know what you think, too.
Posted by: sab | Jul 26, 2006 8:48:11 PM
I would say 25 comments on a fairly complex political topic in less than 1 day is pretty good. I don't know why there are posts criticizing the "dearth" of posts on this topic. Mazel tov if you have the education and reading comprehension to follow legal discourse, after all, but don't assume that everyone has your nuanced critical thinking skills... It's OK for some people to be more into Madonna than politics and vice-versa. There's room for all different kinds of people on this planet.
Posted by: Exar M. Holbein | Jul 26, 2006 8:52:09 PM
Wow, I posted a couple of comments here AND on the Lance Bass story. Does that make me shallow or complex?
Posted by: Zeke | Jul 26, 2006 11:20:08 PM
Lol: Madeleine L'Engle once famously said, "I may at times contradict myself, and I will mean both things."
Posted by: Frederik | Jul 26, 2006 11:34:28 PM
http://www.slate.com/id/2146580/
Here is a link in Slate that covers the very ground I was trying to lay out earlier and answers some of my questions too! Apparently the WSC basically said that any reason for banning same-sex marriage was good enough for them!
IMO though, the real issue seems to be whether an individual can petition demands on the state for various acts. Marriage is a petition presented to the state to demand that one's legal status be changed. Can I demand that the state mow my lawn?? No, but the state may set aside petition reviews for various purposes, such as marriage. Therefore, the question is one of privilege to petition. Can I demand that the state marry me? Maybe. The first question is always "to whom?" or even "to what?" and so you need a definition of marriage somewhere. Now, if my neighbor can demand that the state cut his grass while I cannot demand the state cut my grass, is that some form of discrimination? Maybe. Somewhere in this murk is the real issue before us. It would be easier to get the legislature or citizens' petition to clarify the matter I think, though I would one day like to get my grass cut.
Posted by: Anon | Jul 26, 2006 11:55:06 PM
This decision is an EXTREMELY deft side-stepping of the equal protection issue. As the Court said:
"To qualify as a suspect class for purposes of an equal protection analysis, the class must have suffered a history of discrimination, have as the characteristic defining the class an obvious, immutable trait that frequently bears no relation to ability to perform or contribute to society, and show that it is a minority or politically powerless class."
The Court goes on to criticize the lack of evidence provided by the plaintiffs that they have an "immutable trait" and acknowledges that this is currently a matter of considerable debate. It appears the Court left that door open for the future as the science continues to tilt in our favor.
Without being a "suspect class", the equal protection claim is easily defeated because of the lower "rational basis" scrutiny of the Legislature. Which leads to the silly argument about procreation.
SAB has it right in terms of actual political effects, however. Things work out better whenever you can get the Legislature to do the job instead of the courts.
Washington remains one of the states in which a legislative solution has a decent chance. More likely it will be a civil unions law than full marriage.
Posted by: Dave | Jul 26, 2006 11:57:56 PM
The Washington Supreme Court has thrown another roadblock in the way of LGBT rights based on the DOMA, which was, lest we forget,the brain child of Bill and Hillary Clinton. Bill and Hillary are two of the favorites of the Stonewall Democratic masochists who bleat about the necessity to support and vote for the Democrats, thus insuring our continued oppression by them and their Republican cousins.
During elections, many of us buy into their good cop, bad cop routine. Those who do so mistakenly project their personal hopes onto candidates and parties who are simply scamming them. Republicans, bad as they are, are only half the problem and not always the worst half. There’s a decisive qualitative difference in power between supporters of the Democratic Party and its owners. Voters who fantasize that they’re on an equal footing with the leaders of these parties should substantially increase their lithium dosage.
Questions of political power are settled by clout. Party leaders, corporations, bosses and the rich have, as Martha puts it “a gracious plenty” of clout. Casual party members, activists for NOW, civil liberties, AARP, NARAL, PFLAG, immigrant’s rights, environmentalists, the antiwar movement, trade unions and minority rights advocates don’t have clout. Some of our leaders imagine they’re influential but if these self-styled leaders begin taking themselves seriously, mistaking the smoke and mirrors for real power they can find themselves on the receiving end of clout.
Politicians pretend to be accountable, but the ones they really listen to are the rich and powerful;. Woodrow Wilson, who knew whereof he spoke, said, “Suppose you go to Washington and try to get at your government. You will always find that while you are politely listened to, the men really consulted are the men who have the big stake… The masters of the government of the United States are the combined capitalists and manufacturers of the United States.”
Machine candidates tell you whatever you want to hear - they ‘understand’ you and ‘feel your pain’, and at election time are to be seen rooting for votes right and left. They ignore principle, decency and their own laws to get elected. After the marks have been mugged, sorry, that should obviously have read ‘after the voters have spoken’, politicians scuttle behind locked doors to meet lobbyists bearing briefcases brimming with big bucks and ‘suggestions’ on how to vote. DOMA costs money for corporations, especially insurance companies, and they vote against it.
“We have no political parties. We've never had much of them -- I mean the Democrats, the Republicans. We have one party -- we have the party of essentially corporate America. It has two right wings, one called Democratic, one called Republican.” Gore Vidal March 12th, 2003 on SBS Australia
We need our own Party, and the trade union led and organized Labor Party is our best chance to use the electoral process as part of an ongoing strategy of mass mobilization to achieve our equality. Life for gays and lesbians in the Democratic and Republicans Parties is life in the closet, in the dark. We need to get out into the light.
Posted by: Bill Perdue | Jul 27, 2006 3:32:02 AM
I agree that it would be nice if the Democrats would stop screwing around and stand up for something, e.g. gay rights. Sometimes I think it's the gay-friendly Republicans, e.g. Giuliani, Bloomberg, etc., who will make the difference for us. The Democrats take us for granted, pure and simple, but don't deliver.
Posted by: Friendly Bentley | Jul 27, 2006 10:22:35 AM
>>>As far as I know there was never an attempt to amend the national, or even any state constitution to maintain segregation.<<<
There didn't need to be. Slaves were originally 3/4 of a person under the original constitution for the purposes of representation. And even with the executive signing of the Emancipation Proclamation and the Congressionally-passed 14th Amendment, we *still* needed Brown v the Board of Education nearly 100 years later in order to dispense with the lie of segregation. So explain to me again why we should exalt legislative solutions over legal action?
Please understand: I'm very much in favor of legislative measures, and if anything, I hope that the decisions in New York and Washington put some much-needed backbone back into legislative elected officials.
But for precisely the reason you state -- that widespread support isn't as sweeping for equal marraige rights as it was for desegregation (at least among the people currently in power, because this is less true the younger you go) -- is all the more reason that the courts have a role to play, *and they are punting.* Because either this is a matter of equal rights and privileges, or it isn't, and that's why I have a problem with the recent rulings in NY and Washington: they're saying that it isn't, that the elected majority can define the right to marry as something available only to man/woman couples with children. Which should even bother childless straight people.
I also think that "backlash" is something of an overstatement. DOMA predated the Mass. decision by quite some time, and that was in many ways the initial legal gauntlet thrown at our feet. I'm the first to admit a lot has changed over the last decade -- hallelujah -- and that we can even have these arguments is something of progress. On the other hand, we have states writing man/woman marraige into their constitution, but the ones actually doing it shouldn't surprise anyone. The practice is hardly widespread. I think it's thirteen states out of fifty at last count? And how many states resisted segregation until Brown?
No matter how it happened first, courts or laws, there was going to be "backlash" from the expected corners. It's often the price for the first sounding, when freedom is allowed to ring.
Posted by: A.G. | Jul 27, 2006 2:15:48 PM
Do you know, I could take my own arguments more seriously if I could reliably spell "marriage." Le sigh.
Posted by: A.G. | Jul 27, 2006 2:56:36 PM
A.G. you are correct that DOMA predated the Mass. marriage equality ruling. You are incorrect, however to say that the Mass. ruling was the "original gauntlet thrown at our feet". If you remember just a little further back the ORIGINAL gauntlet was the Hawaii Supreme Court decision declaring traditional marriage laws were unconstitutional and discriminatory to gay Hawaiians.
What happened next? A Hawaiian and national political panic (one might even call it a "backlash") that resulted in a State of Hawaii Marriage Amendment and the federal DOMA .
Some may question the existence of, causation of, result of or effectiveness of a backlash but DOMA would not be the best example to use to deny the phenomenon.
Posted by: Zeke | Jul 27, 2006 4:04:26 PM
I wouldn't be so quick to dismiss procreation. While it is true that the world suffers from overpopulation, mainly third world countries, there is a decided decrease in the population in developed countries. Many of these countries (i.e. Britian, Spain, the Netherlands, etc.) are having to import their workers from other countries. Has anyone heard of the term 'Eurabia'?
Look at what's happening in the Netherlands, a country that has been renowned for its progressiveness. Many of these immigrants are from the middle east and Africa with poplulations that are very much anti-gay. In a few years, it is feared their their numbers will greatly influence policy elections in these countries. A prospect this is certainly not good for gays. There are gays in Amerstadam that report being fearful of holding hands in public for the first time in their lives. Ask Chris Crain. So, before echewing the importance of heterosexuals having children you might want to consider that these children might be what stands between us and the anti-gay horde.
Posted by: Jesse | Jul 30, 2006 5:15:37 AM