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Washington High Court Upholds Exclusion of Gay Couples From Marriage:

Over the objections of four dissenters, the court turned away a state constitutional challenge to Washington's marriage law. Here's a summary of the holding from the opinion itself:

In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution's privileges and immunities clause that is applied under the federal constitution's equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature's decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, 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. Allowing same-sex couples to marry does not, in the legislature's view, further these purposes.2 Accordingly, there is no violation of the privileges and immunities clause.

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.

Hans Bader (mail):
There's an added wrinkle to this case.

Under cases such as Gormley v. Robertson (Wash. 2004), gay (and heterosexual) partners who split up can already effectively demand a share of each other's property even if they aren't married, under Washington State's idiosyncratic family law.

So Washington State gay couples already face the risk of a "divorce" -- which can be very economically costly and lead to expensive court battles -- even if they aren't married!

So it is easier to understand why they want to be able to get married, to get the benefits of marriage, given that they already face some of the same risks and costs faced by married people, such as "divorce" in all but name, even if they are not legally married.

By contrast, in New York, New Jersey, and Massachusetts, there is no cause of action for unmarried couples, so you can't get divorced without first getting married.

Moreover, family law in New York and Massachusetts is so biased against the breadwinner spouse, and vests such uncabined discretion in the hands of the divorce court judge, that it is sensible not to get legally married in those states, since the divorce laws are so generous to the impecunious spouse (usually the wife) as to provide an incentive for divorce (keep in mind that more than two-thirds of all heterosexual divorces are initiated by the wife over the husband's opposition, usually no-fault divorces, and keep in mind also that in jurisdictions with gay marriage or the equivalent, divorce rates are even higher among gays than heterosexuals: three times higher among lesbians, for example, as the break-ups of the first lesbian couples to wed in Massachusetts and enter a civil union in Vermont illustrates).

So the net benefits of getting legally married in New York, Massachusetts, and New Jersey are much less than in Washington State.
7.26.2006 12:45pm
Tony (mail):
In my opinion, the battle was lost when public discourse accepted, without any significant dissent, the ridiculous and counterfactual idea that the state determines who is and is not married.

I am married to another man in the state of California. We crafted the marriage ourselves, including shared property, power of attourney for health care, et cetra. The fact that the state does not recognize this relationship does not change what it is. And the debate over what the word "marriage" encompasses does not change what it is - that debate is insubstantial and inconsequential, since it's not going to change my use of the word or how it's understood when I use it.

I've ranged from lukewarm to mildly hostile in my attitude towards forcing the government to recognize same-sex marriage. Marriage is not a game of "mother may I". I don't need the state, or even particularly desire its intrusion. Heck, I'm Canadian, what do I care? At least my home country's government doesn't waste time denying reality.
7.26.2006 12:54pm
anonyomousss (mail):
grr. why must we have these sorts of judicial activists on the courts even in liberal states? why won't the judges apply the laws and constitutions adopted by the people rather than imposing their personal policy preferences on the rest of us?
7.26.2006 1:10pm
Steve:
What's odd is the reaction to these judicial decisions which deny same-sex marriage. You'd think that opponents of same-sex marriage would celebrate, and proponents would be devastated, but in many cases the reverse seems to be true.

Perversely, opponents of same-sex marriage often find themselves cheering for a court to do the opposite of what they want, as they envision rallying the troops against the outrage of judicial activism, overturning the decision via ballot initiative, and developing further evidence of why the courts are evil. It's worth remembering that one of the primary arguments for the Federal Marriage Amendment was the fear that state courts would be imposing gay marriage by fiat like in Massachusetts, and thus we need a constitutional amendment before the activist judges ruin everything. As court after court has gone in the opposite direction, the urgency for a federal amendment has vanished and the movement has definitely lost its momentum.

On the other side of the ledger, many gay-marriage supporters fear the backlash that would come from a judicial decision upholding their position, and they hope to achieve slower results through the democratic process instead. In addition, they are heartened to see the other side with egg on their face following their repeated predictions of judicial activism.

It's a funny world.
7.26.2006 1:16pm
Master Shake:
Tony-

It's great that you've created your own marriage contractually. You say that "the fact that the state does not recognize it does not change what it is" - true enough, although if the state did recognize it, it would be even more than it is. There are many, many elements of state-sanctioned marriage that you are just unable to create by contract (tax benefits, right to have your nonresident spouse live legally in the country, right to sue for wrongful death, and on and on). While I generally agree the state should get out of the marriage business, while they are in it they should give the benefits fairly to all.
7.26.2006 1:25pm
KeithK (mail):
There are probably some on the right who were eager to see another state court require SSM. But these folks were likely those who don't really care about the issue and see it only through the prism of potential political advantage. I suspect the majority of those on the right see decisions like today's as a relief, but one tempered with the knowledge that there were three dissenters who would have ruled the other way. The dissent serves notice that the fight continues, no matter how much some people try to say "see, there's no need for any further action by anti-SSM folks." That's my feeling anyway.
7.26.2006 1:29pm
KeithK (mail):

why won't the judges apply the laws and constitutions adopted by the people rather than imposing their personal policy preferences on the rest of us?

Heh. They did.
7.26.2006 1:30pm
Chris Bell (mail):
Another decision reinforces the thought that the suspect class / rational basis / compelling state interest doctrine just doesn't work correctly when applied outside of race and gender.
7.26.2006 1:56pm
Elais:
I'm curious about the argument that marriage is for procreation and child-rearing. That seems to be on very shaky ground as marriage is not required to produce children or raise children.

If the state had a vested interest in such things, they should be requring all single people to be married and produce children and the banning of all contraception methods including the rythm method. Any infertile couple would not be allowed to marry as they cannot produce children.

Perhaps the state should also require that as soon as a woman/man is fertile they should get right onto marrying and procreating.
7.26.2006 1:56pm
CJColucci:
I seem to recall a lot of talk on a previous thread about the devious political timing of the decision. Or is my memory playing me false?
7.26.2006 1:58pm
Steve:
I'm curious about the argument that marriage is for procreation and child-rearing. That seems to be on very shaky ground as marriage is not required to produce children or raise children.

I see this argument a lot, and I'm a fan of same-sex marriage, so maybe I should just agree. But I think what you're missing is that a government program can further a given interest even if it doesn't advance the interest in 100% of cases. I mean, the purpose of food stamp programs is to feed hungry people, even though there are surely some people on food stamps who would be able to feed themselves just fine without them, right? You wouldn't say "well, I guess the purpose of food stamps isn't to feed hungry people after all, so we might as well just give them to everyone."

It's in the state's interest for there to be kids, and for those kids to be raised in stable, two-parent households, and so the state encourages marriage as a way of indirectly achieving that end. Perhaps there's a way they could narrowly tailor their promotion of marriage, but there's no requirement that every government program be as narrowly tailored as possible. If some extra people get the benefits without producing the kids, oh well. But that doesn't mean the government has any interest in extending the benefit to more and more people who won't produce the kids.

I think the real point to be made is that, in fact, gay families are just as capable of straight families of raising a happy and healthy kid, notwithstanding that the kid may have to come from adoption or artificial insemination. A lot of gay people want to get married precisely because they want to settle down, have kids, and live happily ever after. But I think this is a case that will be made over time.
7.26.2006 2:12pm
Jared K.:
Indeed, it would seem AllOverButTheScreaming has a retraction to make.
7.26.2006 2:14pm
Aaron in Chicago:
I think that activists judges on these state courts have realized which way the wind is blowing politically. If the Massaschusetts decision had not provoked a backlash leading to several state constitutional amendments, I wonder how the NY and WA courts would have ruled?
7.26.2006 2:26pm
Rob Johnson (mail):
I love the concurrence by Chief Judge Alexander. Here it is in its entirety:

ALEXANDER, C.J. (concurring) -- Although many pages of opinion havebeen written in this case, the issue with which we are here confronted is really quite narrow. The question before us is this: is the provision in Washington's marriage statute, RCW 26.04.010, which clearly states that marriage is between a "male and a female," unconstitutional? Put another way, have the petitioners met their burden of overcoming the presumption
that this statutory provision is constitutional? The answer to both questions is clearly "no," for reasons stated very articulately by Justice Madsen in the majority opinion. If we were to conclude otherwise, as do the dissenters, we would be usurping the function of the legislature or the people as defined in article II of the constitution of the state of Washington.
I quickly add, though, that there is nothing in the opinion that I have signed which should be read as casting doubt on the right of the legislature or the people to broaden the marriage act or provide other forms of civil union if that is their will.


It is troubling that there were four!!! dissenters against this position (and three dissenters in the New York decision). These dissents challenge the very concept of a constitutional democracy. In a constitutional democracy, the sovereign people, not the justices, establish the limits of legsilative action. Regardless of one's views on the merits of same-sex marriage, the simple fact is that nothing in our state or federal constitutions supports the judicial imposition of same-sex marriage. As long as these dissents continue to appear, the case for a process-based federal marriage amendment remains strong. The dissenters' understanding of their role as judges should not remain unrebuked.

If we could pass a federal marriage amendment along these lines (Nothing in this Constitution or in the Constitution of any state creates a right for a person to marry another person of his or her own sex.) it would ensure that Justice Alexander's views remains the law of the land even when a majority of justices in a particular state have a perverse view of their role as judges (such as in Massachussetts).
7.26.2006 2:50pm
KeithK (mail):
This decision and the NY decision found that the the state had or could have a rational basis for givign marriage benefits to opposite couples in order to encourage child rearing in an optimal environment. The fact that children can be raised by unmarried couples or singles doesn't invalidate this goal. Neither does the fact that some married couples do not or can not have children.

Steve thinks that gay couples can be just as supportive of child development as straight couples. A valid position. If and when this becomes the general consensus then marriage laws may be ammended to reflect it (over time, as Steve says). That proposition shouldn't be enough to overturn current marriage laws in court though.
7.26.2006 3:01pm
anonyomousss (mail):
I think that activists judges on these state courts have realized which way the wind is blowing politically. If the Massaschusetts decision had not provoked a backlash leading to several state constitutional amendments, I wonder how the NY and WA courts would have ruled?

i think the backlash emboldened the activist judges and cowed the judges who want to apply the law. sadly, the activists have given the anti-family movement victory after victory this past month. state constitutions that gays &lesbians receive equal protection under the laws and be granted the priviliges &immunities granted to all other citizens, yet activist judges persist in twisting the plain meaning of those constitutional provisions to deny them those basic rights.
7.26.2006 3:08pm
anonyomousss (mail):
that should be "state constitutions require that . . ."
7.26.2006 3:09pm
BobN (mail):

Hans Bader:

keep in mind also that in jurisdictions with gay marriage or the equivalent, divorce rates are even higher among gays than heterosexuals: three times higher among lesbians, for example, as the break-ups of the first lesbian couples to wed in Massachusetts and enter a civil union in Vermont illustrates).


Any source for that claim about divorce rates? Every study I've seen on divorce rates shows a significantly lower rate for same-sex couples.
7.26.2006 3:11pm
BobN (mail):

DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis.


DOMA grants a privilege to a favored majority, so that's OK?
7.26.2006 3:14pm
Steve:
If we could pass a federal marriage amendment along these lines (Nothing in this Constitution or in the Constitution of any state creates a right for a person to marry another person of his or her own sex.)

You'll note that this sort of language, which leaves the door open for state legislatures to recognize same-sex marriage if they choose, is the sort of thing you'd expect from the rhetoric in favor of the Federal Marriage Amendment ("we just don't want activist judges deciding the issue!") but in fact, the actual proposed amendment would quite clearly bar states from recognizing same-sex marriage even if they wanted to.

While I definitely prefer the version offered here, I'd note that while the federal Constitution obviously trumps state constitutions, it's not really appropriate for the federal government to dictate how the text of a state constitution ought to be interpreted.
7.26.2006 3:19pm
Rob Johnson (mail):
Steve,

I have been very dissapointed that the federal marriage amendment considered in the house and senate would have barred state legislatures from recognizing same-sex marriage, and I say that as someone who strongly believes we need a federal marriage amendment.

You say:
While I definitely prefer the version offered here, I'd note that while the federal Constitution obviously trumps state constitutions, it's not really appropriate for the federal government to dictate how the text of a state constitution ought to be interpreted.


The whole point of my post was to say that the way the four dissenters read the Washington constitution undermines the core meaning of a constitutional democracy. Article IV, Section IV requires the federal government to guarantee the states "a Republican form of Government." Adopting a process-based marriage amendment, like I favor, would vindicate that obligation.
7.26.2006 3:38pm
Drive By Comments:
I guess that people who think there needs to be a Federal Marriage Amendment should sit down and get to the back of the bus now, shouldn't we, Dale?

I mean, after all, it was a 5-4 decision, where two of the majority concurred in the judgment only, which means that it will always stand, right? Those two couldn't possibly legally support the arguments but view it as imprudent to move forward, could they?
7.26.2006 4:01pm
Hans Bader (mail):
In response to Bob N's query about evidence that gay marriages last less time than heterosexual ones on average:

Justice J.M. Johnson's concurrence in Andersen v. King County (Wash. July 26, 2005) cites to such studies in footnote 45 of his concurrence.

The studies show that heterosexual unions last longer than gay unions, and that lesbian unions last less time than those of gay men.

So much for the ignorant stereotype, promoted by films like The First Wives Club (in which three wives, two of them strikingly attractive, are dumped by their husbands for younger women), that divorce happens because men get bored with their wives and dump them for younger trophy wives, and that men are incapable of monogamy.

In fact, data from the National Center for Health Statistics of the Centers for Disease Control show that in every recent year for which there is data, about two-thirds of all divorces were initiated by wives.

Arizona academic Sanford Braver documents study after study showing that most divorces are no-fault divorces initiated by wives over their husband's objections in his 1998 book Divorced Dads: Shattering the Myths.

When gay marriage is legalized in more states, and gays head to divorce court at higher rates than heterosexuals (and lesbians at the highest rate of all), it will get harder and harder for people to place all the blame for divorce on men, either by claiming falsely that men initiate most divorces (as movies such as the First Wives Club imply) or by claiming that women must be filing for divorce more often than men of men's meanness or "patriarchy" (which will be difficult to argue with a straight face given that lesbians have a higher divorce rate than heterosexuals or gay men, and that domestic violence occurs in both gay and heterosexual households).

Maybe legalizing gay marriage would help break down anti-male stereotypes that pervade contemporary family law, by making it impossible to continue blaming divorce and other marital difficulties largely on men.
7.26.2006 4:04pm
blackdoggerel (mail):
It's interesting to note that both recent state supreme court decisions refusing to sanction SSM on a (state) constitutional basis have expressly referred to the possibility of legislative change. And many of the news reports on SSM proponents' reactions to these decisions describe them as chagrined, but not despairing -- they have resolved simply to take the fight to legislatures; and, given that the proposition seems to be gaining acceptability among voters (as compared to even five years ago), it's not out of hand to suggest that changes will be coming in the next five to ten years. So while SSM proponents didn't get the quick result they wanted, they will probably get it over the longer haul, and with greater popular support than otherwise.

The above is all old news, but what really strikes me is this: what if this tack had been followed regarding abortion? Wouldn't that have been such a better way to go about resolving another divisive, quote-unquote "moral" issue than the top-down approach that Roe led to? Admittedly, abortions would not have immediately been made available everywhere, but over time, with pro-abortion forces having to change minds, rather than force a change by fiat, it's likely they would have made similar gains with much greater popular support.

In the same vein, if this is the path that SSM is going to take (democratic process vs. judicial fiat), I wonder if in 10-15 years we will look back and shake our heads at how the abortion issue, which will still be raging, was handled, and nod with approval at how SSM, which I doubt will be much of an issue anymore, was handled.

Can any SSM proponents (I'm indifferent, frankly) weigh in on whether they would prefer the changes-now-by-fiat approach (a la Roe) or the wait-now-but-greater-legitimacy-later approach?
7.26.2006 4:17pm
Icculus (mail):
Actually, Drive By Comments, from my reading of the case, the predominant reason that there is a split between the plurality and the concurrence is a dispute as to the mode of analysis used to reach the conclusion they all agree with. The concurrence uses a VERY strong emphasis on history and tradition to define the right of marriage under due process and how to apply equal protection analysis, which from my perusal of the opinion the plurality disagrees with (I believe in strongly worded fashion too). These are two strong statements joined by five justices stating that same-sex marriage is a policy domain reserved to the legislature, but with different paths to that end. We don't have two justices believing its "impudent to move forward."
7.26.2006 4:18pm
Steve:
It's unsurprising that there is such a high correlation between those who believe in the doctrine of preemptive war and those who believe in the doctrine of preemptive constitutional amendment. Even though the court ruled against same-sex marriage, we don't know what's in the hearts of those curiously silent judges who concurred only in the judgment. We urgently need a constitutional amendment in case they are simply waiting for the right moment to strike!
7.26.2006 4:43pm
Colin (mail):
The whole point of my post was to say that the way the four dissenters read the Washington constitution undermines the core meaning of a constitutional democracy.

Really? How, by interpreting the constitution? Have you read the Washington constitution, or are you just assuming that any judge who reaches a decision you don't like is an enemy of democracy?
7.26.2006 4:47pm
David Chesler (mail) (www):
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.

How do they reconcile that with the reasoning in Loving (and Skinner v. Okl) that the right to marry is tied up with the right to marry the person of one's choice? Is it only because being treated the same isn't sufficient for the scrutiny applied to racial distinctions? ("Neither whites nor non-whites may marry a person not of the same racial category" doesn't fly.)

(I've long pedantically corrected those who call for the rights of gays to marry that gays already have the right to marry, and that that's not what the Same-Sex Marriage/Defense of Marriage question is about.)

KeithK: This decision and the NY decision found that the the state had or could have a rational basis for givign marriage benefits to opposite couples in order to encourage child rearing in an optimal environment. The fact that children can be raised by unmarried couples or singles doesn't invalidate this goal. Neither does the fact that some married couples do not or can not have children.
Indeed: Rational Basis is a highly deferential standard.
7.26.2006 4:48pm
jrose:
Does the logic in this decision imply that a law which forbids the infertile and elderly from marrying would be constitutional?
7.26.2006 5:29pm
Elais:
Keith,

How much evidence would we need to prove even to virulent same-sex marriage opponents that gay couples provide the 'optimal' enviroment for raising children as well as straight couples?

There seems to be some blanket assumption that opposite-sex couples are automatically the better couple to raise children? I presume a male pedophile who marries a woman and has childen would not be an 'optimal' environment for children.

Some gay couples might certainly be more optimal to raise children than straight couples, but how will that be known if they are not allowed to form families?
7.26.2006 5:39pm
BobN (mail):
Hans Bader:

Justice J.M. Johnson's concurrence in Andersen v. King County (Wash. July 26, 2005) cites to such studies in footnote 45 of his concurrence.

The studies show that heterosexual unions last longer than gay unions, and that lesbian unions last less time than those of gay men.


Well, try as I might, I can't manage to find the concurrence online. Anybody got a link (or a way to find a link)?
7.26.2006 5:54pm
SeaLawyer:
How much evidence would we need to prove even to virulent same-sex marriage opponents that gay couples provide the 'optimal' enviroment for raising children as well as straight couples?


Pure common sense tells you that the 'optimal' environment for raising children is a man and woman. If 2 men where the optimal environment then they would be able to have children.
7.26.2006 5:54pm
BobN (mail):
Elias:

How much evidence would we need to prove even to virulent same-sex marriage opponents that gay couples provide the 'optimal' enviroment for raising children as well as straight couples?



You might want to look at the NY decision. They already found that we (gay people) are superior in that regard. That's why the state needs to incentivize (eeek! what a word) heterosexual marriage.

It's worth noting that the Washington court, despite waiting 505 day to find some court decision upon which to hang their illogic, did not even want to touch that absurd conclusion.
7.26.2006 5:59pm
anonyomousss (mail):
Pure common sense tells you that the 'optimal' environment for raising children is a man and woman. If 2 men where the optimal environment then they would be able to have children.

i think you have a pretty serious misunderstanding of evolution, theology, or both. there's no sense in which "trait X did not evolve" entails "what exists now is as good as, or better than, X."

also, the optimal environment is to have parents who are rich, healthy, and have lots of free time to spend with their kids. i will be shocked if poor, sick, busy straight couples' kids do nearly as well as those raised by pairs of rich, lesbians or gay men with lots of free time.
7.26.2006 6:21pm
SeaLawyer:
i think you have a pretty serious misunderstanding of evolution, theology, or both.



I have a very clear understanding of both.

also, the optimal environment is to have parents who are rich, healthy, and have lots of free time to spend with their kids. i will be shocked if poor, sick, busy straight couples' kids do nearly as well as those raised by pairs of rich, lesbians or gay men with lots of free time.

As with anything you need to compare the averages and not the extremes.
When you have to compare 2 extremes you have lost the argument.
7.26.2006 6:34pm
Colin (mail):
Pure common sense tells you that the 'optimal' environment for raising children is a man and woman. If 2 men where the optimal environment then they would be able to have children.

I second anonyomousss -- that statement is gibberish. What definition of "optimal" are you using?
7.26.2006 7:02pm
Rob Johnson (mail):
I wrote:

The whole point of my post was to say that the way the four dissenters read the Washington constitution undermines the core meaning of a constitutional democracy.


Colin asks:

Really? How, by interpreting the constitution?


If by "interpreting the constitution" you mean "acting like philosopher kings," yeah that's how. Look, Colin, I believe in judicial review, but there are limits, and those limits are established by the original meaning of the constitution. And the original meaning of our state and federal "equal protection clauses" DOES NOT encompass a right to same-sex marriage for the very same reasons it does not create a right to polygamous marriage, incestuous marriage, etc. . .

Colin also asks:

Have you read the Washington constitution, or are you just assuming that any judge who reaches a decision you don't like is an enemy of democracy?


Yeah, I've read it. But did I need too? Why was same-sex marriage recognized in Massachussets but not in New York, Washington, Oregon, and Arizona? Was because of the words of the Massachussetts constitution, or was it because of the composition of Massachussetts' highest court? If you think the Massachussetts Supreme Court would have decided the question differently had it been "interpreting" Arizona's constitution, you are more naive than I am. Judges should not act like philosopher kings. A process-based marriage amendment would help remind them of that.
7.26.2006 7:33pm
KeithK (mail):

How much evidence would we need to prove even to virulent same-sex marriage opponents that gay couples provide the 'optimal' enviroment for raising children as well as straight couples?

Elais, I don't know how much evidence is needed. I doubt you would be able to convince me since my position is based on my own moral and religious beliefs. But you don't need to convince the most virulent opponents. You simply have to convince a sufficent majoiryt of people that the deomcratic process would enact your policy goals.

Marriage has historically been defined as a union between a man and a woman. There is a rational reason for this - family, child rearing, etc.. Maybe times and/or society have changed such that the traditional model is no longer the right choice. The burden should be on those who seek to redefine marriage to convince society to make such a change.

If the state of California (where I live) passes a SSM law (which it would have had Gov. Arnold not vetoed) I will be greatly disappointed. Much as I am with many of the laws passed by legislatures in Sacramento, D.C. and elsewhere. But I'd accept it as legitimate.
7.26.2006 7:36pm
Tinmanic (mail) (www):
Hans Bader:
Justice J.M. Johnson's concurrence in Andersen v. King County (Wash. July 26, 2005) cites to such studies in footnote 45 of his concurrence.

The studies show that heterosexual unions last longer than gay unions, and that lesbian unions last less time than those of gay men.
Such studies have been widely discredited, as no accurate comparison can be made. Gay people have not had access to the stabilizing influence of marriage. And perhaps those gay couples more inclined to stick together will be the ones to get married. Rights are not premised on the number of people who want them.
7.26.2006 8:07pm
Colin (mail):
Look, Colin, I believe in judicial review, but there are limits, and those limits are established by the original meaning of the constitution.

Or, apparently, whenever the judges disagree with you. Arriving at a different interpretation of the constitution isn't "acting like philosopher kings," it's just a result that you don't like.
7.26.2006 8:12pm
Rob Johnson (mail):
Colin,

Explain for me, if you would, why there is a constitutional right to same-sex marriage but not polygamous or incestuous marriage. The similarity between your constitutional "interpretation" and your policy preferences is remarkable.
7.26.2006 8:29pm
Mike S (mail):
It is worth remembering that the decision before the court, in Washington as elsewhere, is not whether same-sex marriage is good or bad idea. It is whether some provision in the state constitution compels the state to recognize same sex marriages. I do not understand how any court can seriously consider the claim that some generalized language about equality in a state constitution can require the state to redefine a fundamental social institution, when the subject was not addressed, either pro or con, during the adoption of the provision. I cannot imagine any theory of democratic governance in which a fundamental institution can be changed without any intention on the part of those, whether the people or their representatives, adopting the constitutional provision to even address the question.


The analogy with interracial marriage and Loving is badly flawed. In the first place, legal racial equality is the explicit point of the 14th amendment; even if the meaning of racial equality may be said to evolve with society, the principal was explicitly adopted. And of course, racial homogeneity was not part of the definition of marriage; even under the Virginia Miscengenation statute, it only was required if one of the spouses was white. In contrast, marriage has historically been between persons of opposite sex, even in societies, such as ancient Greece, which were quite tolerant of homosexuality. And, as far as I know, no state constitution includes a specific provision requiring equal treatment for same sex couples, which is not necessarily the same as equalt treatment for homosexuals. After all, sexual attraction between the parties is not a legal requirement of marriage in any jurisdicition I know of. For that matter, I am aware of no state whose constitution explicitly requires the state treat people equally regardless of sexual orientation.

It is one thing to say that generalized language regarding equal treatment protects homosexuals in areas, like employment, where sexual orientation is of no relevance; that can be reasonably said to apply a principal of equal treatment explicitly adopted in a constitution to the changed societal circumstance of a large number of openly homosexual individuals. It is another thing to suggest that general language redefined a major social institution without intending to do so. If so, any constitution would mean anything at all a majority of judges on a state's highest court says it does, and none of us would live in a democracy.

I am astonished that any judge would, for a moment, even consider these cases, much less vote in favor of a requirement to recognize same-sex marriages. (And I live in Massachusetts.) I can see many sound arguments in favor of permitting same sex marriage. I can see none in favor of permitting judges to read same sex marriage into a constitution with no support from either the language or history of the constitution.
7.26.2006 11:09pm
David Chesler (mail) (www):
The analogy with interracial marriage and Loving is badly flawed. In the first place, legal racial equality is the explicit point of the 14th amendment; even if the meaning of racial equality may be said to evolve with society, the principal was explicitly adopted. And of course, racial homogeneity was not part of the definition of marriage; even under the Virginia Miscengenation statute, it only was required if one of the spouses was white.

In some contexts there are exactly two races: whites and everybody else. (Or nowadays there are exactly two races: minorities and everybody else, noting that Jews and Asians are not minorities for the sake of that definition.) In such a context miscegenation is by definition only a consideration if one of the spouses is white, just as the marriage requirement now only applies if one of the spouses is female.

Obviously they're not the same thing: anti-miscegenation requires the parties to be the same in a certain dimension, DOMA requires the parties to be different in a certain dimension.

I'm referring particularly to this, in the summary:
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.

It depends how you slice it. On the other hand, DOMA treats the sexes differently: a woman may marry a man, but a man is denied that right, and if you're a man who is attracted to men but not to women, that's obviously significant.

The difference may simply be that such a statement passes rational basis, but fails strict scrutiny. Otherwise by the same algebra, SCOTUS could have said that Mildred Jeter and Richard Loving weren't denied the right to get married by Virginia, since they were allowed to get married, just not to the people they chose to be married to. (If you're the kind of romantic who believes there is One True Love you must find, nevermind, but for most people the gender of a potential mate is a much bigger concern than the race of a potential mate. Under anti-miscegenation, there is still somebody for everybody; under DOMA some portion of the population is unable to marry any member of the pool of desirable partners.)

That is, if DOMA is treating both sexes the same, then anti-miscegenation is treating both (all) races the same.

I can see many sound arguments in favor of permitting same sex marriage. I can see none in favor of permitting judges to read same sex marriage into a constitution with no support from either the language or history of the constitution.

Marshall didn't say "SSM is a good idea, so I'm making it the law", she said "I see in the language of the constitution that SSM must not be denied". (Of course you may believe that all judges, or at least all judges who disagree with you, are really saying "This is what ought to be, now I will write some words that claim that what I think ought to be is what the constitution requires.")
7.27.2006 1:09am
David Chesler (mail) (www):

also, the optimal environment is to have parents who are rich, healthy, and have lots of free time to spend with their kids. i will be shocked if poor, sick, busy straight couples' kids do nearly as well as those raised by pairs of rich, lesbians or gay men with lots of free time.



As with anything you need to compare the averages and not the extremes.
When you have to compare 2 extremes you have lost the argument.


The best, most optimal environment in which to be raised has a lot of things going for it:
- Money
- Health
- Education
- Time and attention
- Good (law-abiding, respectful, etc.) role models
- Multi-generational role models (grandparents, a village, what-have-you)
- A male role model and a female role model
- Etc.

A SSM lacks role models of both sexes. It fails to be most optimal that way. (So does a marriage dissolved by death or divorce lack role models of both sexes.)
But plenty of other marriages fail to be most optimal in some other way, and probably more significantly sub-optimal than lacking a role model of one or the other sex, yet nobody proposes restricting, for the good of the children, marriages that will lack one of those other factors.
Which is why a lot of folks say "This 'for the children' reasoning is a crock of manure, SSM offends you for some other reason, and you're just trying to justify your position, because your true reason is not sufficient to justify interfering with what other people would choose to do."
7.27.2006 1:22am
Elais:
SeaLawyer,

It is not 'common sense' that one man and one woman is perfect for raising children. That is the most common arrangement in raising children among humans in recorded history. Presumably in our knuckle-dragging days, our society was built much like ape societies today, an alpha male with a harem of females. Marriage certainly wasn't created because it was the 'ideal' situation to raise children, it was a means to transfer property rights.

How will we know that lesbian couples or gay couples are also perfect for raising children if we never give them a chance or continue to vilify and discriminate against gay families?

There are many bad marriages among straight couples that provide a terrible environment for children. This mantra of 1 woman/1 man ignores the individuals in the marriage. I wish people would stop worshipping this 1 man/1 woman ideal that doesn't exist.

Two men can certainly have children, so do two women. They utilize the same technology as straight infertile couples. Your arguement doesn't have a lot of merit with me.

KeithK

My own moral beliefs tell me that same-sex marriage should be backed by law and promoted. I'm an athiest, so religious arguements don't hold much water with me.

Slavery has been defined as one person owning another and it has been a historical institution since biblical times. There were plenty of rational reasons for it, but times and society have changed such that slavery is no longer acceptable in most countries.

History has changed society greatly over the centuries, falling back on the 'historical' arguement to preserve tradition has about the same merit as the 'think of the children!' arguement.
7.27.2006 1:23am
Elais:
SeaLawyer,

It is not 'common sense' that one man and one woman is perfect for raising children. That is the most common arrangement in raising children among humans in recorded history. Presumably in our knuckle-dragging days, our society was built much like ape societies today, an alpha male with a harem of females. Marriage certainly wasn't created because it was the 'ideal' situation to raise children, it was a means to transfer property rights.

How will we know that lesbian couples or gay couples are also perfect for raising children if we never give them a chance or continue to vilify and discriminate against gay families?

There are many bad marriages among straight couples that provide a terrible environment for children. This mantra of 1 woman/1 man ignores the individuals in the marriage. I wish people would stop worshipping this 1 man/1 woman ideal that doesn't exist.

Two men can certainly have children, so do two women. They utilize the same technology as straight infertile couples. Your arguement doesn't have a lot of merit with me.

KeithK

My own moral beliefs tell me that same-sex marriage should be backed by law and promoted. I'm an athiest, so religious arguements don't hold much water with me.

Slavery has been defined as one person owning another and it has been a historical institution since biblical times. There were plenty of rational reasons for it, but times and society have changed such that slavery is no longer acceptable in most countries.

History has changed society greatly over the centuries, falling back on the 'historical' arguement to preserve tradition has about the same merit as the 'think of the children!' arguement.
7.27.2006 1:23am
David M. Nieporent (www):
Two men can certainly have children, so do two women. They utilize the same technology as straight infertile couples. Your arguement doesn't have a lot of merit with me.
To the best of my knowledge, there is no "technology" (parthenogenesis?) which enables two men or two women to have children. Two men or two women can raise someone else's child (as straight infertile couples can), but that isn't "technology." Straight infertile couples can use technology (such as drugs or IVF) to conceive; two men or two women cannot. They require a third person to contribute biologically.
7.27.2006 4:03am
Bryan DB:
David,
Do you really want to hang your hat on that argument? Soon enough, cloning will make it relatively easy for two men or two women to have a child. There's no strength to any argument that restricts marriage based on the "can have kids" capability.
7.27.2006 11:57am
Colin (mail):
Explain for me, if you would, why there is a constitutional right to same-sex marriage but not polygamous or incestuous marriage.

You can read through a discussion of that argument in a dozen different places on this site alone.

The similarity between your constitutional "interpretation" and your policy preferences is remarkable.

Yes, I say the same thing about judicial conservatives.
7.27.2006 12:11pm
Mike S (mail):
David,

David,
There are many cases, where, however strongly one feels about a particular side, one can see how both sides legitimately arrive at their positions. For example, this is generally the case in 4th amendment cases. The principles are fairly clear--the amendment limits the ability of the state to search people's homes and private effects, yet does not give the citizen unlimited power to resist a criminal investigation. No one that I know of disagrees that these principles were deliberately adopted in the 4th amendment. Arguments are about what sort of personal effects are protected, where the boundary between personnal effects and public records lies, what happens when one resident of a house consents to ( or asks for) a search and the other objects, and what is the proper remedy for violations. While judges bring their perspectives into their rulings here, they are doing so in areas where the constitution clearly calls for some context (e.g. what constitutes an "unreasonable" search) or a application to changes in circumstances such as high-tech equipment and the development of extensive business records. Of course the adopters did not explicitly consider these situations, but the princiles are explicit and clear, and it is the application to new circumstances is disputed.

In the case of Goodrich, I was living and voting in Massachusetts when the relevant section of the constitution was adopted (1976). It reads "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." You will observe that there is no explicit mention of sexul orientation or marriage. And I can attest that there was no suggestion at the time of passage, either by proponents or opponents, that the amendment was redefining marriage. To accept the contention of the Goodrich majority, is to accept that a constitutional provision can produce fundamental change, not anticipated at the time of adoption, nor driven by any change in circumstances (there were gays and gay activists back in 1976, I assure you.) The constitutional provision adopted in 1976 (which was to add the last sentence) did not address the question of same-sex marriage one way or the other. What sensible theory of democracy can allow the fundamentals of society to be legally changed without anyone intending to do so? The history is recent and unambiguous; to defend the Goodrich majority, requires the assertion that the authority of the constitution does not stem from the will of the people. if so, what does it depend on?
7.27.2006 10:53pm
David Chesler (mail) (www):
What sensible theory of democracy can allow the fundamentals of society to be legally changed without anyone intending to do so?

Is it possible for an individual or a society to set forth a principle, and later, when realizing that a particular longstanding practice is contrary to the principle, bring practice into alignment with principle?

Of course it may come down to what is more important, the principle (Equality under the law shall not be denied or abridged because of sex) or the consequence (women are allowed to marry [unmarried, unrelated, adult] men, so we also have to allow men to marry men)?

In any case, that doesn't seem to be the reasoning in Marshall's Goodridge opinion, but rather she relies on "Absolute equality before the law is a fundamental principle of our own Constitution.", in a case pre-dating by 64 years that amendment to the Mass Constitution. and applies strict scrutiny, not rational basis, to the fundamental right, marriage to the person of one's choice, as denied to a suspect class, homosexuals. Maybe I'm reading the opinion incorrectly, but the more important result may be not that people are not prohibited from marrying members of the same sex on that basis, but that homosexuals are a suspect class.
7.28.2006 10:22am
Mike S (mail):
David,

Of course principles put in the constitution can have consequences beyond what was intended. But what principle are we talking about? You sugest sex discrimination, which was, indeed, a major impetus behind the 1976 ammendment, but the law treats men and women equally. You could argue discrimination on the basis of sexual orientation, but that principle was not discussed in the 1976 campaign. I suppose you could point to the more general language at the beginning of the paragraph, but that was written by John Adams, and the claim that he and his contemporaries intended to redeine marriage or even to establish equality between homosexual and heterosexual behaviors is risible on its face.

The "homosexuals as a suspect class" also seems hard, given that Massachusetts had, before Goodrich any number of laws protecting both homsexual individuals and couples. For an example that was recently in the news, the state had already required, by law, that adoption agencies not discriminate between same-sex and opposite sex couples; this recently led the state's largest adoption agency, which had been run by the Catholic Church, to close. However, the legislature had considered but not passed bills permitting same-sex marriages in the years leading up to Goodrich. Given the history of other acts to protect gay rights, it is hard to credit that as being due to animus against gays.
7.30.2006 9:53am