Thursday, July 27, 2006

Washington Ruling Dissents

The majority ruling in Washington State performed its sideshow trick. It took a key legal principle, stood it on its head and spun it until it was dizzy.

In both the New York and Washington decisions, the judges perverted a legal touchstone, that of compelling interest. They wrote very clearly that their states had a compelling interest in legislation that promoted the continuation of humanity, in their cases by promoting heterosexual marriage, which often produced offspring.

Yet as the dissents in the Washington case iterated and mirrored the New York dissents, that has squat to do with the question before them. Promoting straight marriage has no relation to allowing same-sex marriage. Forbidding SSM simply punishes gays and their children and in no way leads to the production of a single additional future citizen.

Legal observers must be as astonished as many of us plain folk in both rulings. The kindest view is that the decisions illustrate the humanness of the judges, both in their confusing religion with law, and in trying to justify their biases. Those are all too human, but must be corrected because of how they affect others.

Outraged Dissents

The Washington court seems not filled with bigots. In fact, only one justice showed himself to be an ideologue who was not urging the legislature to address this inequality.

Among the three separate dissents, two strongly condemned this wrong of head and heart ruling. The third, from Tom Chambers , concentrated on why the state constitution's Article I, Section 12, should protect homosexual couples.

Opinions from Justices Mary Fairhurst and Bobbe Bridge are similar to the dissents in the New York ruling. They point out plainly and in strong terms where the majority erred legally. Unfortunately, the Washington ruling does not have an option for appeal, because no federal issues are involved. However, other state courts as well as the state legislature there will surely read and benefit from the view of both judges.

Fairhurst gets right into the central issue with:
The plurality and concurrence condone blatant discrimination against Washington's gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests. With the proper issue in mind--whether denying same-sex couples the right to marry will encourage procreation, marriage for individuals in relationships that result in children, or child rearing in households headed by opposite-sex parents--I would hold that there is no rational basis for denying same-sex couples the right to marry.
She concludes, with the concurrence of the other three dissenters, Bridge, Chambers and Susan Owens, "the right to marry the person of one's choice is a fundamental right, the denial of which has historically received heightened scrutiny." In other words, the court should have acted to correct the flaw and protect the right.

To the main point, she expands on the inanity of claiming that DOMA in anyway furthers the state's interest in making babies. "But DOMA in no way affects the right of opposite-sex couples to marry--the only intent and effect of DOMA was to explicitly deny same-sex couples the right to marry. Therefore, the question we are called upon to ask and answer here, which the plurality fails to do, is how excluding committed same-sex couples from the rights of civil marriage furthers any of the interests that the State has put forth."

She draws on the plaintiffs' testimony of the hardships forced on same-sex-couple families. As she put it, "...the State has turned its back once those children (adopted or by insemination) are integrated into their families. It is those children who actually do and will continue to suffer by denying their parents the right to marry." The broad spectrum legal protections and benefits of marriage are denied both parents and kids.

She concludes that "DOMA was motivated by animus toward homosexuals. When no rational basis supports a discriminatory statute, this court may presume that the statute is motivated by aimus."

She aptly ridicules the majority's conclusion that marriage as a fundamental right concerns only procreation. The many opposite-sex couples who cannot or choose not to reproduce belie that, as well as the well established privacy right not to reproduce.

Fairhurst has impatience and wisdom in her admonitions. She states, "Furthermore, 'history and tradition' should not control us where that history and tradition merely reflect that a popular majority is willing to denigrate the rights of a minority group." She adds, "We should not have to go through the same painful process of waiting for popular opinion to catch up with the constitution to declare denial of the right to marry unconstitutional."

She calls the majority decision out for what it is. "Unfortunately, the plurality and concurrence are willing to turn a blind eye to DOMA's discrimination because a popular majority still favors that discrimination." She suggested that the right decision would have been more like the Massachusetts one -- ordering the legislature to align law and equal rights. She wrote that her court did not have the authority to rewrite Washington's marriage statutes, but that "this court should hold that DOMA is unconstitutional because the fundamental right to marry extends to same-sex couples but leave remedying the marriage statutes to the legislature."

More Fustigation

Justice Bridge was even more pointed with her pointy head associates. She started her dissent with "I dare say, the result that we reach today will be remembered for what it does not do than for what it does." Among her examples is "What we have not done is engage in the kind of critical analysis the makers of our constitution contemplated when interpreting the limits on governmental intrusion into private civil affairs; what we have done is permit the religious and moral strains of the Defense of Marriage Act (DOMA) to justify the State's intrusion."

Bridge stresses the cruel unconstitutionality of DOMA, as well as the majority's mingling of religion and law. She does not mince words about the church/state issues. "Yet the DOMA relies on the notion that the institution of marriage needs to be defended from gays and lesbians, rather like anti-papal laws once sought to 'defend' a protestant way of life from an onslaught of Catholic immigrants, and segregation laws sought to "defend" white-privilege from people of color."

Her dissent also brings to mind the clarity of Massachusetts marriage law from Colonial times. In her state, marriage has been secular since laws of 1854. "Because a marriage license only acts as a trigger for state-conferred benefits, the State's role is not to endorse certain morals, lifestyles, or relationships when it grants a marriage license, but rather it should only identify those entitled to the benefits of marital status." That was similar to findings in our Goodridge decision.

Further, despite the federal DOMA, she notes that "...religious restrictions on the institution of marriage have never governed civil marriage in this country, nor would it be constitutionally permissible for them to do so."

She rightfully pooh-poohs the pseudo-scientific studies of single-parent families as "proving" that opposite-sex parents are better parents. Instead, she states that while DOMA does nothing to preserve straight marriage, by withholding rights and benefits from same-sex families, it does harm to their children.

Finally, her analysis concludes that DOMA violates the Equal Rights Act, by prohibiting a woman from marrying a woman or a man from marrying a man strictly on the basis of gender.

She discusses the 1974 Singer case in her state, which ruled against two men seeking to marry. "The Singer court argued that Washington law denied same-sex couples the right to marry, not due to gender, but because of a definition of marriage that necessitates an opposite-sex couple. In other words, discrimination based on gender was permissible in that case because opposite-sex marriage is the 'traditional' definition of marriage. As other courts have noted, the Singer court's logic amounts to 'tortured and conclusory sophistry.'"

As in legalized racial discrimination, those days should be well behind us. Bridge concludes that "...there is little doubt that the DOMA was enacted because of, not merely in spite of, its adverse effects on gays and lesbians." Amen, we add.

The Washington legislature now will have to confront this narrow decision and look at the broader issues. For yesterday's decision, Bridge concluded:
Future generations of justices on this court and future generations of Washingtonians will undoubtedly look back on our holding today with regret and even shame, in the same way that our nation now looks with shame upon our past acts of discrimination.

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