Ending fifteen months of speculation, the Washington Supreme Court announced on July 26 that the state’s Defense of Marriage Act (DOMA), which bans same-sex couples from marrying, does not violate the state constitution. In opinions adopting many arguments used in similar decisions by courts in New York and Indiana, a majority of the court declared that it was “rational” for the state to use marriage as a way to encourage heterosexual procreation in the context of traditional families.
But the court was unable to speak with a single voice. Justice Barbara Madsen wrote for a plurality of three members, joined by Chief Justice Gerry L. Alexander and Associate Chief Justice Charles W. Johnson. In a separate opinion, “concurring in the judgment,” Justice James M. Johnson wrote for himself and Justice Richard B. Sanders. The chief justice also wrote a brief separate opinion of no substance.
All four dissenters jointed an opinion by Justice Mary E. Fairhurst. Justice Tom Chambers, joined by Justice Susan Owens, also wrote separately to address one particular point of contention, and Justice Bobbe J. Bridge, writing for herself, focused on the blatant anti-gay animus of DOMA.
Many had predicted that the Washington opinion would be favorable to gay marriage. Two trial judges had ruled in favor of the plaintiffs, finding either that a fundamental right was at stake or that excluding gay people from the right to marry involved a constitutionally suspect classification, but the final decision came down to sharply contrasting views about the proper role of the court in resolving a contentious issue of public policy.
Madsen’s opinion was surprisingly apologetic stating repeatedly that the court’s role in reviewing challenged statutes should normally be very deferential to legislature’s policy judgments. In addition, Madsen stressed more than once that the plaintiffs had asked not for equality with respect to the legal rights, benefits and obligations of marriage, but for marriage itself, broadly hinting that had the case been litigated along the lines of the 1999 Vermont marriage case, the result might have been a ruling requiring the state to adopt some form of civil union or domestic partnership.
In an opinion that was at points illogical, Madsen wrote that the question before the court was whether there was some rational basis for the state to extend the right to marry to opposite-sex couples. Her discussion emphasized the long history of marriage as a heterosexual institution, regardless of the many ways it has evolved in particular features, and the central role she identified for procreation, in reviewing U.S. Supreme Court decisions touching on the importance and centrality of marriage.
Madsen alluded to the “channeling procreation” arguments that were also articulated in the New York and Indiana marriage rulings, but did not emphasize it. Instead, invoking the limited role for judicial review in cases that do not involve a fundamental right or a suspect classification, she focused most of her discussion on supporting the conclusion that there is no fundamental right of “same-sex marriage” and that gay people are not a “suspect class.”
Fairhurst’s dissent, similar to the July 6 dissent by Judith S. Kaye, chief judge of New York’s highest court, criticized the plurality (and concurrence) for asking the wrong questions. Fairhurst wrote that the question is not whether there is a fundamental right to “same-sex marriage,” but rather whether there is a right to marry.
More importantly, Fairhurst noted that excluding same-sex couples from marriage did not rationally further the state interests identified by Madsen. To the dissenters, the issue was not whether the government might have a rational basis for wanting to encourage opposite-sex couples to marry, but rather whether the government had a rational basis for excluding same-sex couples from marrying. As Kaye did, Madsen emphasized that denying marriage to same-sex couples particularly disadvantages the children they are raising, while doing nothing to advance the goal of encouraging heterosexual couples to marry.
Johnson’s concurrence showed none of the reluctance that was found in Madsen’s opinion. In strongly affirmative prose, Johnson sharply criticized the trial judges for writing opinions that he called “transparently result-oriented” and contributed, in language more stark than Madsen’s, his view that the state DOMA did not discriminate because “under DOMA every adult has the ability to marry a person of the opposite sex. No inquiry is made into their sexual orientation. It cannot be said that an individual with a homosexual orientation is deprived of the ability to enter a state-recognized marriage, absent an a priori redefinition of marriage.”
Such remarks always remind this writer of U.S. Supreme Court Justice Oliver Wendell Holmes’s famous statement that the law in its majesty equally forbids the wealthy and beggars from sleeping under bridges, as exemplary of the concept of equal protection of the laws.
Chambers’ dissent was mainly concerned with a side issue — the appropriate interpretation of the state constitution’s privileges and immunities clause. In the plurality opinion, Madsen had cited past cases to rule that this clause was only relevant to analyzing situations where the legislature had conferred some special privilege upon a minority of the citizens, which the clause forbids, and thus the plaintiffs could not argue that letting opposite-sex couples marry while denying that right to same-sex couples was a violation of this provision, since the “privilege” had been conferred on a majority.
This interpretation was contrary to the way Oregon has interpreted its constitutional provision, upon which the Washington provision was based. Madsen justified the different approach by pointing to a different history of the provision’s adoption in Washington, including discussions in the 19th century constitutional convention at which the provision was framed. Chambers disputed this approach and contended at length that the meaning of the privileges and immunities clause should be broad enough to encompass this case. The right to marry is a privilege, he argued, that should be made equally available to all the state’s citizens.
Bridge’s dissent is the most emotionally satisfying to read because she takes the gloves off and addresses in blunt language the issue that nobody else will talk about — that DOMA was adopted in an atmosphere of blatant anti-gay animus, based on the religious and moralistic sentiment on the part of many of its supporters, and that encouraging opposite-sex couples to procreate within traditional family units had nothing to do with this legislation. She was a lonely voice in dissent, although Fairhurst did allude to this history in her lead dissenting opinion.
As the ruling was premised solely on the state constitution, the Washington Supreme Court’s decision is final and cannot be appealed, except to the political process. Madsen wrote repeatedly that the court was not passing on the wisdom of DOMA and she concluded her opinion with a strong intimation that the legislature should get busy providing some equality for same-sex couples.
“All parties agree that the legislature has the authority to define marriage within constitutional limits,” Madsen wrote. “However, we note that the record is replete with examples as to how the definition of marriage negatively impacts gay and lesbian couples and their children. The plaintiffs and their amici have clearly demonstrated that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples, unlike married couples who automatically have the advantages and rights provided to them in a myriad of laws and policies There may be ‘more just and humane’ ways to further the state’s interests, but the state has met its burden in demonstrating that DOMA meets the minimum scrutiny required by the constitution. However, given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”