The Washington State Supreme Court has ruled 5-4 that prohibiting same-sex marriage is not unconstitutional. Specifically, the court found that the Federal Defense of Marriage Act (DOMA) does not violate any provision of Washington’s Constitution. As the New York Court did a few weeks ago, the Washington Court pulls some suspicious reasoning out of the air to defend itself.
At special issue in the Washington case is the State Constitution’s “Privileges and Immunities Clause,” which states that “no law shall be passed granting to any citizen, class of citizens, or corporation… privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” This would seem to mean that the state cannot grant the right to marry to one class of citizens while denying the same right to another class.
However, the court chose to ignore the plain language of this clause and instead come up with its own interpretation. According to this court, the framers of Washington’s Constitution (written in 1889) were afraid of “undue political influence exercised by those with large concentrations of wealth, which they feared more than they feared oppression by the majority.” Thus, the current court concludes, the Privileges and Immunities Clause really applies only to “favoritism granted to a minority class.” Since current marriage law grants favoritism to a majority class (opposite-sex couples), the law doesn’t apply.
Having dispensed with the State Constitution, the Washington Court can fall back on the methods used to determine if a law is unconstitutional under the U.S. Constitution. First, the court must determine whether to apply the low “rational basis” test, or the higher “strict scrutiny” test. Laws are supposed to receive strict scrutiny if they discriminate against a “suspect class,” defined as a group with a history of discrimination, an immutable characteristic, or lack of political power. The court concluded that being gay is not immutable, buying the state’s argument that it is a behavior rather than an innate characteristic, and that gays have political power, as evidenced by a few municipal statues prohibiting discrimination on the basis of sexual orientation. Therefore, gays are not a suspect class, and the state must merely show that there is any rational basis (as opposed to a compelling state interest) for preventing same-sex marriage.
The rational basis, once again, is procreation. According to the court, “partners in a marriage are expected to engage in exclusive sexual relations with children the probable result.” Since only opposite-sex couples can have children as the result of said exclusive sexual relations, the state has a rational basis for allowing opposite-sex marriage. The glaring omission, as in the New York decision, is the rational basis for prohibiting same-sex marriage, which is the issue in question. A related rational basis, according to the state, is that “children tend to thrive in families consisting of a father, mother, and their biological children.” Let’s assume that’s true. Again, what does that have to do with prohibiting same-sex marriage?
In order to arrive at the conclusion that prohibiting same-sex marriage is constitutional, the Washington State Supreme Court has ignored the plain language of the Privileges and Immunities Clause, decided that being gay is a choice, reasoned that gays are not discriminated against because of a few municipal laws protecting them, and failed to explain how allowing same-sex marriage would inhibit procreation by opposite-sex couples or destabilize families of opposite-sex couples.
There is a bright side to the decision, but one that reveals a divide in the gay community. While ruling against same-sex marriage, the court practically comes out and says, “Bring us a case about civil unions and we’ll force the state to have them.”
“Many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person’s property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death. But plaintiffs have affirmatively asked that we not consider any claim regarding statutory benefits and obligations separate from the status of marriage. We thus have no cause for considering whether denial of statutory rights and obligations to same-sex couples, apart from the status of marriage, violates the state or federal constitution.”
Note that the court did not consider civil unions in this case because the same-sex couples suing for the right to marry specifically asked them not to. Some believe that civil unions are a “second class” marriage; a sort of “separate but equal” that isn’t good enough. That will have to be the subject of a future blog entry.
--Jeff & Konnor
Footnote: As evidence of the claim regarding children thriving in families with a father and mother, the state cited testimony before a House Committee. According to the court, that’s good enough. Not only that, but “it is particularly inappropriate for this court… to make its own inquiry into the validity or reliability of any studies presented to the legislature.” The Washington court has brought the rational basis test to a new low. Apparently, the state doesn’t even need a rational basis, but only a belief of a rational basis held up by any single piece of evidence, however flimsy. If the state can simply assert a rational basis, and the court has no role in evaluating its rationality, why have a rational basis test at all?
0 comments:
Post a Comment