Concerned Women for America - Marriage Wins in Washington!

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Marriage Wins in Washington! 7/27/2006
State's highest court rejects same-sex marriage.
By Kristen Morgan

The Washington Supreme Court in a 5-4 opinion ruled today in Anderson v. King County that the state's Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, is not a violation of the state constitution's "privileges and immunities" and due process clauses or the state's equal rights amendment.

"We've been holding our breath waiting for this one and now we can celebrate another win for marriage, democracy and judicial restraint," said Jan LaRue, CWA's chief counsel. "The ruling is extremely important in that the court also ruled that the plaintiffs failed to 'make a showing' that homosexuality is an 'immutable' characteristic, such as race or alienage. This really undercuts their 'civil rights' argument. They are not a minority class that's ever ridden at the back of the bus or been deprived of political power."

In 2004, judges in two cases filed by same-sex couples in King and Thurston counties ruled that the DOMA was a violation of state constitutional rights. The ACLU and Lambda Legal represent the same-sex plaintiffs.

However, supporters of the DOMA argued that the state had a rational basis for defining marriage as between one man and one woman. They argued that the DOMA protected the state's interest in regulating relationships that produce children. A recent survey showed that 55 percent of Washington residents oppose same-sex marriage.

The Washington Supreme Court consolidated the cases and heard oral arguments in March 2005. Five of the nine justices voted to uphold the law. The ruling reversed two lower court decisions that found the DOMA unconstitutional. It also reaffirmed a 1974 decision Singer v. Hara that denied a marriage license to two men.

In the majority opinion Justice Barbara Madsen stated, "It is important to note that the court's role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be." The court also noted that the decision "accords with the substantial weight of authority from courts considering similar constitutional claims."

Madsen first noted that a privileges and immunities challenge to a law that is not a grant of favoritism to a minority should be analyzed under the federal Equal Protection Clause.

The Court then held that DOMA did not violate the Equal Protection Clause. Madsen wrote that people wishing to enter into same-sex marriages did not constitute a "suspect class" as defined by the U.S. Supreme Court. She also stated that same-sex marriage was not a fundamental right because it has no history or tradition in Washington or the nation. Since the case implicated neither a suspect class nor a fundamental right, the challenged law required only a rational basis to be upheld. Madsen agreed with the DOMA's supporters that the DOMA was rationally related to the important state interest of providing a stable environment for children.

Madsen ruled that the DOMA does not violate the state's equal rights amendment because it treats both sexes the same. She also found that the law did not violate the due process clause because the plaintiffs were not deprived of a fundamental right.

Three justices issued concurring opinions. Chief Justice Gerry Alexander agreed with the Court's reasoning as well as its judgment and stated that "[i]f we were to conclude otherwise, as do the dissenters, we would be usurping the function of the legislature or the people as defined in article II of the constitution of the state of Washington." Although two of the justices concurred only in the judgment, their opinion stated "[t]his is a difficult case only if a court disregards the text and history of the state and federal constitutions and laws in order to write new laws for our State's citizens."

The three dissenting opinions all labeled the DOMA "discriminatory" and held that it deprived gays of the fundamental right to marry. In an opinion joined by all four dissenting justices, Justice Mary Fairhurst wrote, "[u]nfortunately, the plurality and concurrence are willing to turn a blind eye to DOMA's discrimination because a popular majority still favors that discrimination."

Some had speculated that the court would wait until after the November elections to issue a ruling for political reasons. Three of the court's justices are up for re-election in the fall. The justices, however, insisted that they would issue the ruling a soon as it was complete. The ruling came only three weeks after New York's highest court rejected the claim that same-sex marriage is a constitutional right.

A decision in favor of same-sex marriage would have had far-reaching effects because unlike Massachusetts, which imposed same-sex marriage in 2003, Washington state marriage licenses do not have a residency requirement. This means same-sex couples from states that do not permit same-sex marriage could have gone to Washington, "marry," returned to their home state and filed suit to force their state to recognize the Washington "marriage." Forty-five states have statutes or constitutional amendments defining marriage as between a man and a woman.

Concerned Women for America (CWA) filed an amicus brief in the case. The brief argued among other things, that the DOMA does not discriminate among citizens because any unmarried person who meets certain age qualifications may apply for a license to marry an unrelated unmarried person of the opposite sex who also meets the age qualifications.

The brief was co-authored by Washington attorney Theresa Schrempp, David DeWolf, professor of law at Gonzaga University in Spokane, Washington, and Jan LaRue. CWA appreciates the excellent, pro-bono work of both Schrempp and DeWolf.

Kristen Morgan is a second-year law student at Catholic University in Washington, D.C., and a summer intern at CWA through the Blackstone Fellowship of Alliance Defense Fund.