Same-sex Marriage in Washington

There have been several decisions on same-sex marriage in the past month. The most recent was last week's 5-4 decision in the Washington State Supreme Court that upheld a law banning same-sex marriage. Lower courts in that state had previously struck down the law. The most important thing to consider in that decision is that all the law needed in order to survive scrutiny was "some rational basis." That was not a high legal standard to meet. Justice Barbara A. Madsen wrote in the opinion that "Limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents." Two other justices noted that there was "a compelling governmental interest in preserving the institution of marriage."

The plaintiffs in this case could not prove that homosexuality was an immutable characteristic like race or gender. That is a separate and significant debate altogether, but in this case it prevented the plaintiffs from challenging the law on the basis of discrimination, which would have been a much more stringent standard than that of "some rational basis."

The dissenting justices sharply attacked the majority, accusing the other justices of tacitly allowing discrimination. Justice Mary Fairhurst wrote: ""The plurality and concurrence condone blatant discrimination against Washington's gay and lesbian citizens." Justice Bobbe J. Bridge said that under the majority's reasoning, "there would have been no Brown v. Board of Education."

I find the dissent's arguments completely unpersuasive, particularly Justice Bridge's tired reference to Brown v. Board. Many plaintiffs' groups try to link their causes to the landmark civil rights case in an attempt to claim moral legitimacy, but here the cases are not analogous. The decision did not "condone blatant discrimination," but merely upheld the law according to the applicable legal standard. In writing the opinion for the plurality, Justice Madsen noted that same-sex marriage could be legalized by means outside the judiciary. "We see no reason, however," she wrote, "why the legislature or the people acting through the initiative process would be foreclosed from enacting a the right to marry to gay and lesbian couples in Washington." While I would not support such an initiative or legislation, I agree with the court's ruling that the proper way for such a law to be altered or eliminated would be through the legislature or a public referendum, not through a "judicial end-run."