King County Superior Court Judge William L. Downing ruled on August 4 that the Washington State marriage law, which specifies that a valid marriage may take place only between one man and one woman, violates the rights of same-sex couples under two provisions of the state’s constitution, the due process clause and the privileges and immunities clause.
Noting that his decision is merely the first step in a case that will end up in the state’s Supreme Court, Downing refrained from ordering any remedy. However, he clearly felt that the remedy of allowing same-sex couples to marry was preferable to creating an alternative status, such as civil unions or domestic partnerships.
“The Court is inclined to offer this perhaps gratuitous observation,” Downing wrote. “If there is indeed any outside threat to the institution of marriage, it could well lie in legislative tinkering with the creation of alternative species of quasi-marriage. With the creation of ‘civil unions,’ ‘domestic partnerships’ or other variations on the theme including, worst of all, something like a ‘five year plan with opt-out,’ there could be a real danger. When cohabiting heterosexual couples can sign up for a renewable or revocable fixed term contract to define the terms of their state-recognized relationship, then marriage, as an institution, could be weakened.”
Downing was ruling on a test case brought by eight same-sex couples, represented jointly by Lambda Legal and the Northwest Women’s Law Center. The lawsuit was filed in March in the midst of excitement generated by the issuance of marriage licenses in San Francisco and Multnomah County, Oregon, and in the wake of marriage opening up to same-sex couples just across the border in British Columbia, Canada, where some Washington couples had been going during the past year to get married.
Downing’s lively and polished opinion, issued just one week after oral arguments, shows every sign of having been worked on for many weeks, and it is undoubtedly one of the most stylishly written opinions to be issued by any court in a same-sex marriage case.
The plaintiffs based their claimed marriage right on three provisions of the Washington Constitution. The “privileges and immunity” clause provides: “No law shall be passed granting to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” This is Washington’s version of the federal equal protection clause. The state’s due process clause provides: “No person shall be deprived of life, liberty, or property, without due process of law.” Just as the U.S. Supreme Court has interpreted the federal due process clause to provide substantive protection for individual liberty, so have the Washington courts interpreted their state’s due process clause. Finally, Washington’s equal rights amendment, adopted in 1972, provides: “Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.”
Beginning in 1993 with the Hawaii Supreme Court’s famous same-sex marriage decision, there has been a growing body of thought that bans on same-sex marriage are a form of sex discrimination. Unfortunately for the parties in the current case, in one of the earliest same-sex marriage cases in 1974, Washington’s court of appeals rejected the argument that the state’s recent adoption of an equal rights amendment meant that same-sex couples were entitled to marry. Downing was bound by that appellate decision, and did not engage in an analysis of the sex discrimination theory.
However, he produced a very sophisticated and nuanced analysis of the due process issue. Gay litigants have recently been relying heavily on a series of United States Supreme Court decisions that hold that the right to marry is a “fundamental right” entitled to serious constitutional protection, but all of those decisions involved barriers to marriage facing opposite-sex couples only. In Loving v. Virginia (1967), the Supreme Court struck down a Virginia law against interracial marriages. In Zablocki v. Redhail, it invalidated a law that denied marriage licenses to parents who had defaulted on child support obligations. In Turner v. Safley, the court struck down a prison regulation barring inmates from marrying.
But Downing found that the Court’s reasoning in each of those cases was based on a broad view of marriage as a fundamental right. The Court did not hold that interracial marriage, marriage by deadbeats, or marriage by prisoners is a fundamental right. Rather, it held that the ability to enter the institution of marriage is a fundamental right—all of which would apply, in some way, to same-sex couples, including procreation, the reason most often cited for denying same-sex couples the right to marry. Downing noted that many same-sex couples are raising children, and that many heterosexual couples who can’t or don’t intend to procreate get married, so allowing same-sex marriage does not break the link between marriage and children.
Thus, Downing found that the claim to same-sex marriage does involve a fundamental right, and that the state had failed to articulate a compelling reason to deny such a right.
As to the question of privileges and immunities, Downing reported that the attorneys for the plaintiffs had enumerated more than 300 rights and responsibilities in Washington State law that turned on marital status, so clearly there were many privileges and immunities—including, for example, immunity from having to testify against a spouse in a legal proceeding—that were not being made equally available to all of Washington’s citizens based on any valid reason. Downing clearly and specifically rejected arguments that the morality or tradition of the majority could serve as legitimate justifications for such discrimination.
Perhaps most meaningfully, Downing saw marriage as something existing on many different levels, of which civil marriage is only one. Reflecting on the biographies and characteristics of the eight same-sex couples who brought the lawsuit, Downing wrote, “The plaintiffs’ sworn statements reflect that, within each pair, they have already made a close personal commitment to be joined together in a bond that is intended to be permanent. Thus, in a basic or linguistic sense, they are in fact now married.”
Tracing the historical development of marriage, Downing found that the stage at which the state began to play a role was the most recent, having followed early stages of social custom and religious tradition, and that the state’s role is specifically focused on what could be called “civil marriage,” distinct from religious marriage.
Last year’s U.S. Supreme Court decision in Lawrence v. Texas played an important part in Downing’s thinking about how to resolve this case, since in the sodomy ruling the Court specifically listed marriage as one of those intensely personal decisions protected by the due process clause, and had pointedly commented that gay people were eligible for due process protection. Downing did not cite Justice Antonin Scalia’s dissent lamenting that the ruling opened the way for same-sex marriage, instead focusing on the positive statements in separate opinions by Justices Anthony M. Kennedy and Sandra Day O’Connor about the limited role of moral judgments in questions of constitutional law and the expansive liberty rights protected by due process considerations.
Downing’s opinion suggests the hard thought and weighing of options he put into this ruling.
“In the final analysis,” he wrote, “the Court must return to the conflicting pole stars offered by the two sides. After long and careful reflection, it is this Court’s firm conviction that the effect of today’s ruling truly favors both the interest of individual liberty and that of future generations It is true this Court’s favoring the equal rights of all citizens (as have courts in Vermont, Hawaii, Oregon, Massachusetts, British Columbia and elsewhere ) may place the judicial branch of government briefly at odds with the legislative. That this may be so is not at all regrettable. Rather, it is fully consistent with sound constitutional principle, with the wise structural design of our government and with the realities of the dynamic of healthy social progress.”
There is no word yet on the state’s inevitable appeal of this ruling.