Tuesday, August 29, 2006

Appeal in Marriage Equality Case

Supporters of marriage equality today asked the Washington State Supreme Court to reconsider its recent decision upholding Washington State's so-called "Defense of Marriage" Act. Attorneys for Lambda Legal, the American Civil Liberties Union, and the Northwest Women's Law Center contend that the Court's decision was flawed. Following is a brief overview of several of the arguments:

  • The Court's opinion establishes such a great deference to the legislature that, "...the rights of all Washingtonians [are] subject to infringement at the whim of the barest legislative authority."

  • Any law creating legal distinctions between groups must find a legitimate purpose underlying the law. Those purposes relied upon by the Court (procreation and the welfare of children) are illegitimate (the link between marriage and procreation is a distant one and the law protects the welfare of only some children - not children of same-sex couples).

  • The Court misconstrued Washington State's Equal Rights Amendment as applying to groups (women and men) as opposed to individuals. "...[T]he right to marry a person of one's choosing is an individual right.... The State cannot deprive an individual of a constitutional right by imposing that deprivation equally, as the United States Supreme Court has made repeatedly clear."

    I come away from this motion with a much more detailed understanding of the ways in which the Court's ruling was flawed. This response was precisely what I was waiting for in reserving judgment on the previous decision. To be honest, I hold out relatively little hope of the Court revisiting the matter, but I believe it would do well to do so - justice, and the law, have not been well-served here.

    The motion to reconsider can be viewed in full here (.pdf). It's an easy read - no legal training required (just skip over the case citations) - and creates persuasive arguments for all of the points I briefly outlined above.

    Sam Ross said...

    ...This is very odd, but I think I'm going to have to disagree with a lot of what the Lambda team is saying in this release. I've read (most of) the court's decision, and though I truly believe they went the wrong way and used some seriously flawed logic, most of the decision was, for better or for worse, perfectly sound, in a strictly sterile legal way. They applied the scrutiny laws accurately, they respected the division of power doctrine, they more or less did exactly what a court should do in a case like this. The huge, glaring flaw in the decision that I see is one that, for reasons I really don't understand, the LL team seems to almost be ignoring in public.

    Suspect Classification. That was the key here. If a group of people is determined to be 'suspect', any law passed relating to them is reviewed under heightened scrutiny, where laws must prove to not only be passed without animosity, but also that they do legitimately solve a real problem or resolve a real issue as opposed to a theoretical issue or a perceived problem. DOMA would have gone down in flames if this had happened in the court decision. In order to be considered 'suspect', groups must be determined to:

    1. Have a history of discrimination against them;
    2. Be politically disenfranchised; and
    3. Display an obvious immutable characteristic which sets them apart from the majority

    This is the set of rationales that set laws about women and black people apart from laws about, say, Yankees fans and cat owners. You and I would agree that the GBLT community passes all three qualifications with flying colors, right? Well, the Supreme Court disagrees... kinda. They flat out concede point 1 ("There is no dispute that gay and lesbian persons have been discriminated against in the past."). They punt around the second point a bit, stating that several prominent gay elected officials exist in the state and the anti-discrimination legislation was passed this last section (I know, irony), but that weak argument alone would not have sustained DOMA. The real killing blow came with point 3, where the court determined that homosexuality was not an immutable characteristic, based on a long series of court decisions from a long hate-filled past... Only, then they leave a door open. In the decision, it says quite clearly that "[t]he plaintiffs do not cite other authority or any secondary authority or studies in support of the conclusion that homosexuality is an immutable characteristic... plaintiffs must make a showing of immutability, and they have not done so in this case." If that's not obvious enough, there a friggin' footnote under that very passage which states "[w]e recognize that this question is being researched and debated across the country, and we offer no opinion as to whether such a showing may be made at some later time." They almost sound like they want to overrule DOMA, they just need a slight factual push in the proper direction.

    The Lambda Legal team seems to be ignoring this glaring opening, one that the court practically gift-wrapped for them, and are instead focusing on the rationality of whether limiting marriage to opposite sex individuals creates a positive environment for raising children. It doesn't. You know it, I know it. The courts knew it, too, and basically admitted it. The Legislature probably knew it too. But that's not the point of Rational Basis. The point of Rational Basis isn't determining whether or not the Legislature actually believed something, it's determining whether they could have theoretically believed something. In this case... Yeah, it's theoretically possible that some legislators believed that. If they were stupid. But the separation of powers doctrine must allow for idiot legislators, 'cause, honestly, have you met some of our guys down in Olympia? A bad law reviewed under Rational Basis determined to be feasibly feasible to idiots isn't an unconstitutional law, it's just a moronic one.

    As far as I'm concerned, the way to move this forward is clear: Get a study (or more, preferably), get doctors and psychologists, get geneticists and behavioral experts, and prove to the court that gay people don't consciously choose the people they love, and they can't just change and start being straight. If they did this, it would automatically trigger heightened scrutiny for DOMA. The homophobic comments spoken during it's passage would be all the proof necessary to bury it for good, it would go away, and the day would be won.

    Alex Kim said...

    Sam (and Karl) -

    I did a similar breakdown of Madsen's ruling in an earlier post.

    But after looking at the points made in Lambda Legal's motion, I'm beginning to think that perhaps I was too lenient in accepting the ruling as written by Justice Madsen... especially with point #1 that Karl brings up - perhaps the level of deference to the Legislature here is actually a bit alarming.

    Sam, I strongly, strongly disagree with your vision for what the next steps need to be. It does no service to gay and lesbian people to say that their rights are founded upon the fact that "they can't help it." Don't you think that's a rather weak defense? Additionally (and this is something that I study in anthropology), we see an increasing trend of looking to medical science for answers to ethical questions. This represents an alarming surrender of popular agency to a privileged elite - that is, biological scientists.

    Rights exist because societes insist upon them. I wish our straight allies would stop basing their support for us on the fact that we "can't help it" and start supporting us because we're gay. End of story.

    Furthermore - I believe homosexuality poses huge explanatory difficulties under current Darwinian theory. "Proof" won't be coming for a long, long time. Ironically, I think the premises of "intelligent design" are more compatible with the natural existence of homosexuality witihn societies.

    How's them apples?

    Karl Smith said...


    I was more or less on the same page about the Supreme Court's decision until I read the actual motion for reconsideration. Particularly with the ERA argument, Madsen asked if this discriminated against groups and found that it did not. But the ERA is intended to apply to individuals. The motion gives an example of child custody proceedings. Would a law saying that in marriage dissolution proceedings mothers always get daughters and fathers always get sons be fair to groups? Sure. To individuals? Absolutely not, and the Court has read the ERA in this manner in the past.

    Also, in justifying the Legislature's right to be over- or under-inclusive in its differentiation between groups, the Court relied upon cases dealing with scarce resources. Marriage licenses are by no means scarce. The motion further expounds upon the trouble of equating the two.

    Let's keep in mind that the State Supreme Court OVERTURNED the ruling of the lower court (which had already been upheld by a second court). The other judges found that the state's law discriminated against a class of people (denying them marriage licenses) without a legitimate state interest. The State Supreme Court, in essence, said it wasn't their place to question whether the interest was legitimate, just whether the Legislature could reasonably believe it was legitimate. Madsen writes, "It is particularly inappropriate for this court to accept as true (or untrue) the arguments made and conclusions drawn by those advocating passage of DOMA, or to make its own inquiry into the validity or reliability of any studies presented to the legislature." I believe that those filing this motion disagree, arguing that a discriminatory measure requires a legitimate state interest, which is sorely lacking in this case.

    Sam Ross said...

    Ooh, I want to debate this one more, but I also want to sleep and not lose my job, so I'll be brief(ish) and skip to my main point.

    The solution I proposed was the obvious one that came to me for several reasons: it is practical, it is possible, and it is, above all else, political. M'Liss saw me attempting to form Spanish curses between sobs the day the decision was given, and it was all because I had read the first half and realized just how politically motivated it all was, and with elected Supreme Court Justices, politics is all we can really expect to get. Lambda Legal is trying to get the Supreme Court to reverse their decision, and is using the argument that they applied the ERA incorrectly. In other words, that the court was wrong. They will not do this. What I'm proposing is that Lambda Legal calls the Court's bet and puts up a solid body of evidence showing the immutability of homosexuality. It doesn't have to be definitive, it just has to be definitive enough for one of the 5 Justices to flip over, and right there we'd have a new majority opinion. Madsen wants to rule this way, we just need to help her help us.

    Is this solution perfect? No. Is it honest? Not really. Is it moral? Respectful to homosexuals? Healthy for our society? Probably not. What it is is doable, and for me that's good enough. *shrug* I'm a pragmatic guy. Worse, even. I'm a politician. I think sideways, comfortably using misdirection and lies to achieve (hopefully) noble ends. I believe that the court intentionally left an opening for us to go after, and if going after it brings us the results we want, I wouldn't feel right turning away from it. History will eventually smooth out the details.

    Also, Alex, in regards to: " I wish our straight allies would stop basing their support for us on the fact that we "can't help it" and start supporting us because we're gay", that's what I meant and what I was trying to say. I was just using language like I would use when discussing the matter with the Court. They've chosen a standard and measure it with biology and psychology, and since I felt we had a case that could stand up to that scrutiny, I ran with it. I'm sorry if I offended you, but I still feel that's the right way to take this one.

    "Ye'll tak' the high road an' I'll tak' yer wallet!"
    -The Nac Mac Feegle