Note: sfluke posted the first story on this, located here
There's also the original diary post that contains the bulk of comments: here
This morning, at approximately 8 A.M. Pacific Time, the Washington Supreme Court issued its opinion on a challenge against the state's Ban on Gay Marriage. The challenge was put forward in the courts by 19 same-sex couples in Washington who argued that the ban on same-sex marriages was a violation of the Washington Constitution's due process requirements and Equal Rights Amendment.
The justices ruled 5-4 against the plaintiffs, with a total of 6 opinions issued. The opinions issued were the primary ruling with 2 concurring and 3 dissenting papers.
Find the "position" of the Washington Supreme Court's plurality over the fold. "Judicial Activism" as a conservative talking point against "Liberal Judges" is now DEAD, IMO. I've not seen a more rampant case of "Judicial Activism" before in my life.
The ruling opinion states the following as its position for upholding DOMA (Washington State's DOMA, not Federal):
In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution's privileges and immunities clause that is applied under the federal constitution's equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we....
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1 Faced with a similar dissent in Hernandez v. Robles, 2006 N.Y. slip op. 5239, 2006 N.Y. LEXIS 1836 (Ct. App. July 6, 2006), the lead opinion stated: "The dissenters assert confidentially that `future generations' will agree with their view of this case. [2006 N.Y. slip op. 5239 dissent at *90).] We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives." Id. at *22. (The New York Court of Appeals determined that New York's restriction of marriage to same-sex couples does not violate the New York State Constitution.) No. 75934-1 (consol. w/75956-1) 6
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apply the highly deferential rational basis standard of review to the legislature's decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to 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. Allowing same-sex couples to marry does not, in the legislature's view, further these purposes.2 Accordingly, there is no violation of the privileges and immunities clause. There also is no violation of the state due process clause. DOMA bears a reasonable relationship to legitimate state interests- procreation and child-rearing. Nor do we find DOMA invalid as a violation of privacy interests protected by article I, section 7 of the Washington State Constitution. The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex.
Finally, DOMA does not violate the state constitution's equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.
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2 Justice Fairhurst's dissent attempts to shift the focus from whether limiting marriage to
opposite-sex couples furthers these interests to whether excluding same-sex couples furthers these
interests. By doing so the dissent fails to give the legislature the deference required under the
constitution.
Chief Justice Alexander's concurrence states:
ALEXANDER, C.J. (concurring)--Although many pages of opinion have been written in this case, the issue with which we are here confronted is really quite narrow.
The question before us is this: is the provision in Washington's marriage statute, RCW 26.04.010, which clearly states that marriage is between a "male and a female," unconstitutional? Put another way, have the petitioners met their burden of overcoming the presumption that this statutory provision is constitutional? The answer to both questions is clearly "no," for reasons stated very articulately by Justice Madsen in the majority opinion. If 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.
Let me reiterate: I have never seen such a willful re-interpretation of laws, statutes, and amendments in my lifetime. They lay out the argument that, because DOMA doesn't provide "priviledges and immunities" to a select minority, it is constitutional.
Side Note: As FleetAdmiralJ points out in the comments:
DOMA does not grant privilidge or immunity to a favored minority class, so it goes to federal analysis which is the normal strict scrutiny/intermediate scrutiny/rational basis review test.
they haven't established that they are a suspect class, thus can't achieve to have the case decided using strict scrutiny that way.
they also, in the court's estimation, successfully argue that marrying someone of the same sex is a fundamental right.
the result of this is that the case was decided using rational basis. the court could have conceivably still struck down the law under rational basis (though it is rare to do so).
I about fell out of my chair when I read that. I lack the proper words to point out the degree to which this argument is absolutely flawed . It's intentionally dishonest and wrong, in my opinion.
Hey, all you lesbian, gay, transgender, etc. folk out there...got that? You're a minority, we're not going to make any laws to grant you special privildges or immunities...so just be thankful for what you've got! (/snark!)
I'll let the dissenting opinion of Justice Chambers back me up:
DOES IT MATTER WHETHER A MAJORITY OR MINORITY RECEIVES
THE PRIVILEGE OR IMMUNITY?
This court has never held, after full due consideration, that the effect of article I, section 12 is limited to positive grants of favoritism to a minority class. The lead opinion unfortunately makes reference to "grant[s] of positive favoritism to minorities," as having some constitutional significance in our analysis, but relies upon Grant County II, 150 Wn.2d 791, and
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Smith, 117 Wn.2d at 282 (Utter, J., concurring). Lead opinion at 11. The opinion I signed in Grant County II did not hold that the protections of the privileges and immunities clause effectively extended only to outraged majorities, and saying that we did so hold then does not make it a holding of the court now.5
In Grant County II, this court concluded that our state privileges and immunity clause was different from and may provide greater protections than its federal counterpart. Grant County II, 150 Wn.2d at 811. Because of our shared history and textual similarities between Washington's and Oregon's privileges and immunities clauses, we have relied heavily on Oregon Supreme Court opinions. The only difference between the Washington and Oregon clauses is Washington's added reference to corporations. We explained that the corporate reference was added because our framers were gravely concerned with the effect of large concentrations of wealth and the undue political influence of corporations.
Grant County II, 150 Wn.2d at 808. After a review of history and case law, this court concluded simply, "[f]or a violation of article I, section 12 to occur, the law, or its application, must confer a privilege to a class of citizens." Grant County II, 150 Wn.2d at 812. Grant County II relied upon both Smith, 117 Wn.2d 263, and Clark,
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5 I stress that the lead opinion does not explicitly hold that the privileges and immunities clause applies only when a statute grants a privilege or immunity to a
minority.
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291 Or. 231.6 There is nothing in these cases or the authorities upon which they rely that should lead to the conclusion that the class receiving the benefit must be a minority class before we will independently examine our state constitution. Such a limitation upon our state's privileges and immunities clause would be, in my view, a far greater limitation than any other state has placed on its privileges and immunities clause in the modern era
To wrap up, I give you Justice Fairhurst's dissenting opinion:
The plurality and concurrence 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.2 With the proper issue in mind--whether denying same-sex couples the right to marry will encourage procreation, marriage for individuals in relationships that result in children, or child rearing in households headed by
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2 Despite the plurality's attempts to distance itself from the concurrence, the plurality itself acknowledges that the concurrence "merely repeats the result and much of the reasoning of the [plurality's] decision on most issues." Plurality at 5. In truth, the concurrence fills the
noticeable, and presumably intentional, omissions in the plurality's reasoning. The plurality notably avoids any real discussion of the State's interest in excluding same-sex couples from civil marriage and focuses exclusively on the State's interest in marriage for opposite-sex
couples. See, e.g., plurality at 41 ("[R]earing children in a home headed by their opposite-sex parents is a legitimate state interest furthered by limiting marriage to opposite-sex couples because children tend to thrive in families consisting of a father, mother, and their biological children."). The concurrence, on the other hand, more directly addresses the necessarily discriminatory correlative of that argument. See, e.g., concurrence at 40 ("Direct comparisons between opposite-sex homes and same-sex homes further support the former as a better environment for children."). As Justice Antonin Scalia noted in his dissent in Lawrence v. Texas, 539 U.S. 558, 601, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), "`preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of samesex couples." (Scalia, J., dissenting (quoting id. at 585 (O'Connor, J., concurring)). As much as the plurality would like to deny the discriminatory impact of its decision to uphold an
unconstitutional law, that is the plurality's result.
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opposite-sex parents--I would hold that there is no rational basis for denying samesex couples the right to marry.
I would hold further that the right to marry the person of one's choice is a fundamental right, the denial of which has historically received heightened scrutiny. It is error to artificially limit the inquiry, as the plurality and concurrence do, to whether there is a fundamental right to same-sex marriage.3 It is equally incorrect to limit the definition of the right to marry to the right to marry a person of the opposite sex. Because the Defense of Marriage Act's (DOMA's) denial of the right to marry to same-sex couples is not rationally related to any asserted state interest, it is also not narrowly tailored to any compelling state interest.
Therefore, for both of these reasons, I would affirm the two trial courts in declaring RCW 26.04.010(1) and .020(1)(c) unconstitutional. The plurality uses the excuse of deference to the legislature to perpetuate the existence of an unconstitutional and unjust law. I dissent.
A terrible day in the state of Washington...god forbid ANY of us fall into a minority status seeking protections. Apparently being a minority means that it's perfectly fine for the majority mob to make laws codifying their majority differentiation from you and making it illegal for you to enjoy their rights and priviledges...
*sigh*