Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, July 25, 2006

Case Law Development: Washington Supreme Court Upholds Ban on Same-Sex Marriage

The long-awaited decision of the Washington State Supreme Court appeared today and the court split 5-4, upholding the state's 1998 Defense of Marriage Act, which limits marriage to opposite-sex couples.  The court reversed the lower courts, which had held that the act violated the state constitution and its Equal Rights Amendment.

The majority opinion, authored by Judge Barbara Madsen, begins by noting that, while constitutional precedent and deference to the legislature dictated the outcome, "We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington." 

The court examined the history and nature of Washington state's constitutional privileges and immunities clause and its relationship with the state's equal rights amendment, but in the final analysis, concluded that the privileges and immunities analysis in this context should mirror that of the federal constitution.  The court applied a rationale basis test to the privileges and immunities clause analysis and concluded that for both that analysis and for substantive due process "DOMA is constitutional because the legislature was entitledto 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." The court rejected the privacy analysis Finally, the majority concluded that "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."

The majority opinion spends a number of words on criticisms of the analysis and rhetoric of the dissenting opinions as improper to the judicial role, particularly the opinion of Judge Mary Fairhurst, which saw the case as an example of blatant bigotry.  At the same time expressed considerable support for the political agenda of the plaintiffs.

... The plaintiffs and their amici have clearly demonstrated that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples, unlike married couples who automatically have the advantages and rights provided to them in a myriad of laws and policies.... the plaintiffs expressly requested that this court not consider whether denial of statutory rights and obligations to same-sex couples that apply to married couples violates the state or federal constitution. Thus, our opinion does not address those issues. There may be “more just and humane" ways to further the State’s interests,  but the State has met its burden in demonstrating that DOMA meets the minimum scrutiny required by the constitution. However, 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."

Anderson v. King County, (July 26, 2006)
Opinions on the web:
Concurrence by Alexander, CJ
Concurrence by J.M. Johnson, J.
Dissent by Bridge, J
Dissent by Chambers, J
Dissent by Fairhurst

For reports on local reactions, see the article by Tracy Johnson and Phuong Cat Le of the Seattle Post Intelligencer   or commentary on the decision in the context of Washington's "meretricious relationship" doctrine, which provides considerable protection for unmarried cohabitants, see Jeanne Hannah's Updates in Michigan Family Law blog. For background on the plaintiffs and the suit, see the ACLU press release on the case and the LAMBDA website.

(all last visited July 26, 2006 bgf)

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