Washington SSM Pressure Back on Rights Groups

In Olympia, Washington, today's reversal of trial court findings that one-man/one-woman marriage laws are unconstitutional are a boon to anti-SSM groups and a chasm that pro-SSM ones will have to fight in the legislature now. The five-to-four ruling affirmed that the legislature has the right to limit marriage -- as well as to expand it.

The best news amid the rejection for pro-SSM forces was in the main opinion, which included, "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."

As in Massachusetts, a single vote made the difference, in this case for regression.

The court took the view that what was to be decided was whether the legislature had the right to so regulate marriage. In two cases, representing 19 couples, the lower courts had found that the state's DOMA law was unconstitutional and that it violated the Equal Rights Amendment.

There were two concurring opinions and three dissents.

Among the more bizarre aspects of the majority is the suspect class one. The judges used a 1990 decision (High Tech Gays v. Def. Indus. Sec. Clearance Office) as a basis for dealing with homosexuality as a choice. As the main decision puts it, "The parties dispute whether homosexuality is immutable. The State relies on the decision in High Tech Gays that homosexuality is behavioral, and thus not immutable."

While the plaintiffs noted another 9th Circuit Court of Appeals case (Hernandez-Montiel) that ruled differently, the Washington judges decided that this did not prove immutability of the class.

In another surprisingly conservative interpretation, the judges decided that marriage was not a fundamental right for homosexuals. They chose the vary narrow view that "there is no history or tradition of same-sex marriage in this country." They cited Massachusetts' marriages and Vermont's civil unions. They then turned to circular reasoning about the majority of states forbidding SSM by statute or amendment.

For Washington specifically, they did the same thing. They concluded that there was no tradition of SSM and that the state had used the old common-law oral definition of one-man/one-woman. Again, circular...

While the judges agreed that marriage was evolving, they concluded that it hadn't evolved enough locally to support SSM. Again and again, the decision returns to find that there need not be SSM because there is no SSM.

They also supported the State's view that marriage is for procreation and that because same-sex couples require a third-party in some form to reproduce, the State could call on its legitimate interest in justifying heterosexual marriage. Then, while citing Goodridge here and the facts that sterile, old and those not interested in procreating could marry, they dismissed these.

As with the previous, the basis was that it was "traditionally linked to procreation and the survival of the human race."

The judges also decided that the legislature could believe, based on such evidence as testimony at its hearings, that kids are better off in opposite-sex families. Here, it was not the accuracy of this argument, but whether the legislature was okay in making such assumptions.

They concluded also that DOMA was not unconstitutional and that it does not violate the plaintiffs' privacy rights. They also denied the gender-discrimination claim with by concluding that forbidding a man to wed a man or a woman a woman does not make any classification by sex.

The plaintiffs were held to a much higher standard than the State, which according to the judges need only show a rational basis to justify the legislation.

Agreeing that their ruling was on narrow points of law, the judges did state:

(T)he 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 such as those surrounding medical conditions (e.g., the right to be present in the hospital and to help make difficult decisions), probate (e.g., the right to inherit property), and health insurance (e.g., the ability to obtain coverage for a spouse through employment policies).

The closest thing the judges had to offer to fairness and hope was their conclusion that "...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."

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Tags: massmarrier, same sex marriage, Washington State, opinion