A call to keep loving

Yesterday the Washington State Supreme Court ruled to uphold the state's 1998 "Defense of Marriage Act" which (as you might have guessed from the propagandic title) prohibits same-sex partners from obtaining civil marriages. I had been expected this ruling since the day before, when the Court put out a press release saying the decision would come out sometime tomorrow. I saw the sad headline as soon as I reloaded the Seattle P-I webpage on my computer. It definitely put a damper on the morning.

I thought I would feel more sad or more pissed off - but I don't. Part of it is probably related to the fact that while the Court's ruling was the P-I's top headline, the BBC's top headline was, "Israel troops 'ignored' UN plea" - referring to yesterday's destruction of a United Nations outpost and killing of four UN peacekeepers by Israeli forces. The BBC reports that the peacekeepers sent ten messages over six hours to Israeli forces before the incident occurred, calling for cessation of combat in the immediate area. Instead, 17 bombardments landed within only a kilometer of the outpost and 12 artillery rounds landed within a ridiculous 150 meters - to top it off, four of those rounds actually HIT the peacekeepers' outpost! Only after all that did an Israeli precision-guided missile obliterate the peacekeepers.

So it's a little hard to get too upset about my marriage plans. Still, the issue is obviously of great significance to me - anything remaining of what might have turned into fury or anger was washed away when I actually sat down to read the well-written 62-page opinion by Justice Barbara Madsen (mother of an old ASUW friend, as it turns out).

Justice Madsen's opinion is pretty reasonable - far more than I've come to expect from the government of late. In a nutshell, she summarizes the cases (Andersen from King County Superior Court and Castle from Thurston County) and proceeds to subject them to a series of constitutional analyses. I'll proceed to breeze through her conclusions here, but if you don't care, you can skip ahead past the text I've colored red.

1. WA Privileges and Immunities Clause
First, the justices determine that the cases are not eligible to be reviewed under the "Privileges and Immunities Clause" of the Washington State Constitution (“No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”) The justices find that this clause is meant to protect against unfair favoritism towards a select minority. Thus, they conclude that the clause would not be a proper lens through which to view the cases.

Seeing as how the Privileges and Immunities Clause doesn't apply here, Madsen decides to see whether DOMA violates the federal constitution's Equal Protection Clause. She writes:

"The level of scrutiny to be applied under an equal protection analysis depends on whether a suspect or semisuspect classification has been drawn or a fundamental right is implicated; if neither is involved, rational basis review is appropriate." (p. 17)

She proceeds in that order to analyze the case.

2. U.S. Equal Protection Clause - "suspect class" analysis
According to Madsen, a great deal of jurisprudence holds that for a group to be deemed a "suspect class", attorneys must demonstrate that the group (a) has suffered a history of discrimination, (b) be characterized or defined by an "obvious, immutable trait" that is usually unrelated to one's ability to "perform or contribute to society", and (c) is "a minority or politically powerless class." While she finds"no dispute" that lesbians and gays have been historically discriminated against, she cites other legal opinion which holds that homosexuality is not an "immutable trait." I find this quite disturbing - and it confirms an ongoing discomfort I have had with grounding human rights strictly in biology or otherwise "immutable" characteristics.

Additionally, Madsen disputes the assertion that lesbians and gays are politically powerless. She writes:

"The enactment of provisions providing increased protections to gay and lesbian individuals in Washington shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power. Indeed, the recent passage of the amendments to chapter 49.60 RCW is particularly significant given that, as the plaintiffs point out, the legislature had previously declined on numerous occasions to add sexual orientation to the laws against discrimination." (p. 20)

I find this argument laced with huge ironies. Chapter 49.60 of the RCW is Washington's anti-discrimination law, and Madsen is referring specifically to the much-hailed sexual orientation equal rights bill that passed in January after a thirty-year legislative struggle. How ironic that this victory in a desert of defeats is now used in an argument to uphold a marriage ban! I hope Karl comments on this matter.

Madsen concludes, ultimately, that lesbians and gays do not constitute a suspect class. I find this part of her decision the most troubling and most difficult to accept because I strongly disagree with her findings on the latter two parts of the "suspect class" test.

3. U.S. Equal Protection Clause - "fundamental right" analysis
The question then turns to whether marriage is a fundamental right. Madsen admits up front that it definitely is - but she determines that the right to marry a partner of the same sex is a different matter. Her main argument here is that within the history of law, civil marriage has been linked to society's interest in fostering stable procreation. She does acknowledge that "marriage is an evolving institution" and "history and tradition are not static... Thus, recent history and tradition may also be relevant in deciding whether a fundamental right is at stake" (26-27, 31). In light of this, however, she finds that "community standards at this time do not show a societal commitment to inclusion of same-sex marriage as part of the fundamental right to marry" (32).

4. U.S. Equal Protection Clause - Rational Basis Review
Having found that DOMA affects neither a suspect class nor a fundamental right, Madsen moves on to determine whether the law is "rationally related to a legitimate state interest." She reiterates many, many times in this section that rational basis review is "highly deferential" to the Legislature. Madsen carves a careful niche for the role of the judiciary here - a role that is not supposed to decide whether a law advances a stated interest, but whether the legislature acted rationally in light of evidence that legitimate interests were being advanced.

"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. The court’s responsibility, instead, is to assure that DOMA was enacted in accord with constitutional constraints and that the legislature properly exercised its power." (p. 43)

Madsen finds that the legislature could rationally come to the conclusion that limiting marriage to heterosexual couples would advance the legitimate interest of fostering procreation.

Having been shown not to affect a suspect class or fundamental right, and having passed the rational basis review, Madsen concludes that DOMA does not violate the Equal Protection Clause.

5. Other analyses
The conclusions reached surrounding DOMA and the Equal Protection Clause are used to uphold DOMA over objections concerning due process, privacy rights, and the Equal Rights Amendment (banning sex-based discrimination).

It's clear from reading through the court opinion that the justices find themselves rather constrained. Chief Justice Gerry Alexander writes:

"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?"

The justices say no, it's not unconstitutional to pass such a law.

Yet, the judicial opinion is littered with various hints and gestures that suggest that while the judiciary has little room to rule otherwise, the justices themselves would like to see DOMA at least revisited, and at most, repealed.

Madsen makes a series of jabs at the dissenting justices, but her harshest words are surprisingly directed to two justices who concurred with her - Justices James Johnson and Richard Sanders. I haven't yet read their concurring opinion (which is just as long as the lead opinion), but skimming it gives me the distinct impression that Johnson is operating from impure motives. He starts off:

"This is a difficult case only if a court disregards the text and history of the state and federal constitutions and laws in order to write new laws for our State’s citizens. Marriage is the union of one man and one woman, and every Washington citizen has a constitutional right to enter into such a marriage..."

Madsen, in her footnote, writes:

"Justice J.M. Johnson resorts to name-calling in an effort to refute this point [that recent history and tradition may also be relevant in deciding whether a fundamental right is at stake]." (p. 27)

Madsen emphasizes that the absence of a tradition of same-sex marriage is only a symptom of our current time. She writes:

"Plaintiffs have not established that at this time the fundamental right to marry includes the right to marry a person of the same sex." (p. 32, emphasis added)

Later again:

"...community standards at this time do not show a societal commitment to inclusion of same-sex marriage as part of the fundamental right to marry." (p. 32, emphasis added)

Considering that much of Madsen's determination that marriage equality lies outside of the existing right to marry comes from her observation that there is no "recent tradition" of same-sex marriage, these quotations above seem to me like a call for communities to go ahead with embracing same-sex partnerships, and perhaps even to conduct non-civil marraiges, so that such a tradition might be established.

Page 47 of the opinion is essentially a laundry list of privileges and protections that heterosexual partners enjoy through civil marriage that homosexuals are now prohibited from. In her conclusion, Madsen writes:

"...given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state." (p. 61)

The justices seem to be giving the rest of us a not-so-subtle push: change the law to include your lesbian and gay sisters and brothers, and until that happens, embrace them in full inclusion anyway.

Churches and other religious communities can provide crucial leadership as the queer community focuses its efforts now on the long road towards a legislative victory for marriage equality. Many Episcopal churches, the United Church of Christ, Unitarian Universalists, and several Reform Jewish temples, already perform same-sex marriages, or at least, blessing of same-sex unions. Lesbians and gays, while awaiting full equality, should take advantage of the support afforded by these communities by having their partnerships recognized in a ceremony. And after the service, call one another husband or wife. This is how we must begin building a tradition of same-sex marriage - in defiance of the state.

God endorses love despite the state and despite the human church. So let us call one another "love" before the state gives its permission - and when it eventually does, we can celebrate the time we shared together.