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I'm sure many have you, especially those of you around the Pacific Northwest, have seen facebook posts, tweets, or even the AP story from today:

Marriage Equality is coming to Washington State.

As of several hours ago, we secured the last (if all goes according to plan) vote necessary in our state senate to pass gay marriage.  It came from Senator Mary Margaret Haugen, a Democrat from Camano Island, a small, fairly conservative community in this general area. It was, at least in my opinion, a courageous pledge for her.  She will likely face the wrath of many, many very religious constituents.  But again, kudos to her, to the two republicans who pledged to support the measure, and to everyone else who tirelessly advocated equality in this state over the years - especially Ed Murray, Frank Chopp, Jamie Pederson, and of course, the late Cal Anderson. I hope to take a road trip to Olympia after the bill passes to watch the governor sign it. (I also hope to make the return trip for a party or four on Captiol Hill here in Seattle)

Just a few short weeks ago this seemed unimaginable.  But then our outgoing governor, Christine Gregoire, very vocally pledged support of the marriage equality bill.  She has been pilloried a bit by some who claim she took too long to evolve, or her decision was too easy after she had already announced she wasn't running for re-election.  I find those criticisms to be fucking stupid, to say the least.  Frankly, I could give two shits at a moment like this about past waffling.  She did the right thing, and the results have been glorious.  In no small part because of her public support, Washington will take its place among the handful of states permitting gays to marry, and will have done so legislatively.  An exceedingly impressive feat, IMO.

But this diary is about something different.  It is about an opportunity lost in Washington State.  You see, but for a single vote in our state Supreme Court, we would have been marrying gays for years here.  

Back in 2006, our Supreme Court issued a 5-4 decision upholding the 1998 legislative ban on same-sex marriage.  And the “majority” opinion in that decision will, despite its detached attempt to pretend the result was driven by simple, technocratic analysis of legal precedent, endure as a testament to bigotry and hatred.  Which is sad, given it was written by a woman who is, at least IMO, a frequently correct jurist.  

The case is referred to as Anderson v. King County, 158 Wn.2d 1, 138 P.3d 963 (2006).  There are nine justices on our Supreme Court, and they somehow managed to issue six opinions in this case.  Here is a PDF link to what is considered the “majority” opinion, written by Justice Barbara Madsen and signed only by Justices Gerry Alexander and Charles Johnson.  The opinion has multiple lowlights, many of which can be recognized as mirroring the bullshit arguments advanced by the anti-interracial marriage advocates back before Loving v. Virginia was decided.  This passage right here drives me nuts, because Justice Madsen thinks that somehow, the addition of sexual orientation to workplace discrimination definition eight years after DOMA passed somehow means there was no animus involved in passing DOMA:

Turning first to the plaintiffs' claim that DOMA was motivated by animus, we cannot agree that the only reason the legislation was enacted was because of anti-gay sentiment.  It is unfortunate that the dissents accept this argument, dissent (Fairhurst, J.) at 18-19, dissent (Bridge, J.) at 18, 22, because it is demonstrably incorrect.  A substantial number -- 15 -- of the legislators who voted for DOMA in 1998 also voted to add sexual orientation to the laws against discrimination in 2006.14  Even if some of these legislators may have had a "change of heart," the far more likely explanation for the majority, if not all, is that they were not motivated by antigay sentiment in 1998 but instead were convinced for other reasons that marriage should not be extended to same-sex couples.15  In assuming that everyone who voted for DOMA is a bigot, Justice Fairhurst's dissent is not only wrong, it sadly oversteps the bounds of judicial review.

Huh?  Just stupid.  Then of course there is this:

Therefore, we 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.

Bigoted claptrap to say the least.  I eagerly await her opinion supporting a ban on infertile-couple marriage.  Also stupid is her rationale for declining to apply strict scrutiny to the law: “The plaintiffs do not cite other authority or any secondary authority or studies in support of the conclusion that homosexuality is an immutable characteristic.”  Um, ok.  

But really, that was nothing.  Justice Madsen wouldn’t have had a majority but for two wingnuts signing on to her result, if not her attempt at a detached analysis.  Here is the disgusting and despicable concurrence in judgment only written by the reactionary, former building industry supported attorney Jim Johnson, and signed by former Justice Richard Sanders.  Some choice vomit from his opinion, which is just dripping with animosity toward gays:

The record also establishes that Washington’s marriage definition confirmed in DOMA was rationally supported. Studies presented to the legislature support marriage as a union of one man and one woman. The legislature was offered evidence that children tend to thrive best in families consisting of mothers, fathers, and their biological children.

The current state of scientific findings was further illuminated by intervenor’s expert, Dr. Jeffrey B. Satinover. See Clerk’s Papers (CP) at 531. For the purposes of scientific study, no simple dichotomy can be drawn between opposite-sex couples and same-sex couples. Since same-sex pairing takes place along sexual lines rather than across sexual lines, and because of the nonfungible differences between men and women, serious scientific inquiry should take into account three distinct communities with “starkly unequal demographics, differential impact on children, and different multigenerational capacity.” See CP at 533.

Before redefining a social institution, the legislature should consider ramifications flowing from all three of these couple communities and the resulting impact on the social fabric and on children.

The first obvious and relevant fact is that female couple households are necessarily fatherless and male couple households are necessarily motherless. Each of these differences from the optimum mother/father setting for stable family life may offer distinctive disadvantages.

Studies summarized in the record before one trial court demonstrated that an absent father “is associated with quantifiable deficits in children at every stage of the lifecycle, persisting not only in the adulthood of the child, but even into the next generation.” CP at 539.43 A similar problem has been indicated of families without a mother, although the number of male unions with children is far smaller. CP at 539.44

Direct comparisons between opposite-sex homes and same-sex homes further support the former as a better environment for children. For example, studies show an average shorter term commitment and more sexual partners for same-sex couples.

. . .

Justice Fairhurst’s dissent also insists DOMA was enacted through improper motives of “animus.” Dissent (Fairhurst, J.) at 18. Presumably, this conclusion extends to the United States Congress and President Clinton who enacted and signed the federal DOMA, as well as to other state legislatures who have enacted DOMA versions. To state this paranoid proposition is to rebut it.
. . .

The legislative finding in DOMA confirms the intent to remain consistent with “historical commitment to the institution of marriage as a union between a man and a woman as husband and wife . . . .” Laws of 1998, ch. 1, § 2(1).

The fundamental rights analysis, supra, pp. 20-29, also reflects the mandate of this section of our constitution and demonstrates overwhelming justification for the recognition of marriage as the union of one man and one woman.53 Only a judicial rewriting of "fundamental principles” would result in marriage finding definition in the shifting sands of political correctness.

Justices Bobbe Bridge, Mary Fairhurst, and Tom Chambers all wrote their own dissents.  Justices Bridge, Chambers, and Susan Owens signed Justice Fairhurst’s dissent, and Justice Owens signed Justice Chambers’ dissent.  All three dissents are great.  But to my mind, Justice Bridge’s dissent is just beautiful.  I remember it brought tears to my eyes when I read it.  I will leave you with a few opening words from her dissent:

The impact of this case upon the plaintiff couples and their children is both far reaching and deeply saddening. The impact extends to all of Washington’s gay and lesbian citizens and to the many fair-minded Washington citizens who hoped for a different result in this case. And, I dare say, the result that we reach today will be remembered more for what it does not do than for what it does.

What we are called upon to do here is address the availability of the civil contract of marriage—the only characterization of the issue presented that permits governmental intrusion into what is otherwise a personal, private relationship between two people. The State’s intrusion is governed by the articles of our constitution. What we ought not to address is marriage as the sacrament or religious rite—an area into which the State is not entitled to intrude at all and which is governed by articles of faith. What we have not done is engage in the kind of critical analysis the makers of our constitution contemplated when interpreting the limits on governmental intrusion into private civil affairs; what we have done is permit the religious and moral strains of the Defense of Marriage Act (DOMA) to justify the State’s intrusion. As succinctly put by amici the Libertarian Party of Washington State and the Log Cabin Republicans of Washington: “To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment.” Amicus Curiae Br. of the Libertarian Party of Washington State et al. at 11. After all, we permit civil divorce though many religions prohibit it—why such fierce protection of marriage at its beginning but not its end?

If the DOMA is really about the “sanctity” of marriage, as its title implies, then it is clearly an unconstitutional foray into state-sanctioned religious belief. If the DOMA purports to further some State purpose of preserving the family unit, as the plurality would interpret it, then I cannot imagine better candidates to fulfill that purpose than the same-sex couples who are the plaintiffs in these consolidated actions.

I agree with Justice Fairhurst that the DOMA wholly fails a rational basis review. And, I agree that our nation’s jurisprudence suggests we should hold that where a union is not prohibited by age or bloodlines (restrictions grounded in legitimate state interests in the protection of minors and preventing congenital birth defects), it is a fundamental right of an individual to marry the person of his or her choice. Justice Fairhurst also correctly notes that the plurality and concurrences disingenuously frame the question before us. Dissent (Fairhurst, J.) at 2. They ask not whether the right to marry is fundamental, or whether a prohibition on same-sex marriage strengthens the putative state interest in the frequency and longevity of heterosexual marriage (a dubious policy clearly at odds with our liberalized laws of marital dissolution), but whether there is a fundamental right to “same-sex” marriage. Just as the United States Supreme Court majority did in Bowers v. Hardwick 20 years ago, today’s plurality and Justice J.M. Johnson’s concurrence frame the issue before us so as to ignore not only petitioners’ fundamental right to privacy but also the legislature’s blatant animosity toward gays and lesbians. See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (Blackmun, J., dissenting). The passage of time and prudent judgment revealed the folly of Bowers, a mistake born of bigotry and flawed legal reasoning. Lawrence v. Texas, 539 U.S. 558, 562-78, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Alas, the same will be said of this court’s decision today.

Yes it will Justice Bridge.  On a day like today, it is clear the Anderson majority opinion is nothing more than a mistake born of bigotry and flawed legal reasoning.

Originally posted to taylormattd on Mon Jan 23, 2012 at 04:41 PM PST.

Also republished by Milk Men And Women, Angry Gays, and LGBT Kos Community.

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