The state Supreme Court today upheld Washington's law that defines marriage as a union between a man and a woman, rejecting the argument of 19 same-sex couples that they've been unfairly denied the right to wed. In a splintered decision, Justice Barbara Madsen wrote that the state's marriage law was enacted to "promote procreation and to encourage stable families."
"The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State's legitimate interests in procreation and the well-being of children." She wrote that the same-sex couples failed to prove that they had a fundamental right to marry, or that the state's 1998 Defense of Marriage Act was unconstitutional.
The 5-4 ruling -- signed by Chief Justice Gerry Alexander and Justice Charles Johnson -- also noted a hardship for same-sex couples, however, and suggested that the legislature "may want to re-examine the impact of the marriage laws on all citizens of this state." Concurring in the outcome were Justices James Johnson and Richard Sanders.
There were a total of six opinions, including one dissent each from Justices Mary Fairhurst, Bobbe Bridge and Tom Chambers. Justice Susan Owens signed both Fairhurst's and Chambers's dissents. Justice Fairhust said the plurality and concurring options "... 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."
The decision came on a case the Justices heard on March 8, 2005, when attorneys made constitutional arguments inside the Temple of Justice as thousands of people rallied outside. Attorneys for the state and King County -- as well as a group of state lawmakers and religious leaders opposing same-sex marriage -- argued that the question of who can marry should be left to the Legislature. They said lawmakers had a rational reason for limiting marriage to people of the opposite sex: Only those couples are biologically capable of having children, and keeping them together is generally best for those children. But attorneys for the same-sex couples -- whose case was supported by the American Civil Liberties Union, Northwest Women's Law Center and Lambda Legal -- say the law discriminates against loving couples. They argued that keeping same-sex couples from marrying makes it more difficult for them to raise their children, though it still accomplishes nothing for the kids who are being raised by a mother and a father....
Well ... at least we got a two week break in the bad news parade.
I just wish these judges in various states would get away from the "marriage is intended to encourage procreation and provide for stable families for raising children" argument. Marriage wasn't intended to do that in its original conception -- it was all about property rights (and the right to treat women themselves as property, at that) and regulating inheritance to maintain those property rights -- and unless these justices are prepared to ban divorce and bar all people from marrying without signing affidavits of reproductive intent, and to bar all people beyond reproductive age from ever re-marrying (especially if they haven't reproduced -- shame on them!) marriage sure as hell isn't doesn't encourage either procreation or stable families NOW. (And, you know ... just for the hell of it: I point out that our great nation has 300 million people in it. Something like 30-40% of them manage this procreation deal without actually being married at the time. I'm by way of thinking that the whole "encouraging procreation" aspect was entirely unneccessary -- people do seem to manage creating children just fine without marriage being in the picture. One might just add that modern marriage vows, whether traditional format or something people make up themselves, typically say nothing whatsoever about popping out the kids once all that cleaving business is done. But I digress.)
If they're going to write intellectually honest decisions, these justices should say one of two things:
(1) Despite the fact that legislatures have a historically wretched record of protecting the interests of minorities, this is a political hot potato --- er, that is a decision best left to legislation. We also recognize that if we strike down the ban, it is far more likely to be replaced by a constitutional amendment even more injurious to your interests. We therefore decline to take any part in this decision. Now get the fuck out of our court.
(2) Nobody has a fundamental right to marry, so the state can regulate it however they like, and the state has decided to say, officially, "WE DON'T LIKE YOU. We don't give a rat's ass what sorts of rights you think you ought to be entitled to as a law-abiding resident of this state. WE DON'T LIKE YOU." We think this is an appropriate use of the legislative power of the state, and we support the use of legislation to express these opinions. Discriminating against minorities in the name of irrational prejudice is just fine with us. Now get the fuck out of our court.
Any decision that supports a ban that says anything other than one of the two above statements (couched in appropriate legalese, of course) constitutes a craven abandonment of the role the judiciary is supposed to play in reviewing acts of the legislature to protect the residents of a given state.
Posted by iain at July 26, 2006 11:20 AM
