Five to four upholding DOMA. Madsen, Alexander, C. Johnson, J. Johnson and Sanders in the majority; Fairhurst, Chambers, Owens and Bridge dissent.
I’m still reading through the opinions, and I emphasize the plural because there are a lot of them. Justice Barbara Madsen wrote the
majority plurality opinion to which Chief Justice Gerry Alexander and Justice Charles Johnson signed on in concurrence. Chief Justice Alexander then added a brief concurring opinion stating that nothing in Madsen’s opinion should be construed to cast doubt on the right of the legislature or the people to broaden the definition of marriage.
All this wasn’t good enough though for Justices Jim Johnson and Richard Sanders, who had to produce their own separate concurring opinion (authored by Johnson) berating the rest of the court for even giving the subject serious thought.
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. Courts are not granted such powers under our constitutional system. Our oath requires us to uphold the constitution and laws, not rewrite them.
Marriage is the union of one man and one woman, and every Washington citizen has a constitutional right to enter into such a marriage, 1 subject only to limited regulation under the police power (for example, restricting underage or close family marriage). This understanding of marriage has been continuously recognized throughout the history of the United States and of the state of Washington, including Washington territorial law. The unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing has defined the institution at common law and in statutory codes and express constitutional provisions of many states.
So I guess what Johnson is saying is that it’s irresponsible to rear children in a same-sex household? This is the kind of moralistic, authoritarian court the BIAW and the religious right are trying to buy.
Finally there were three separate dissenting opinions from Justices Mary Fairhurst, Tom Chambers and Bobbe Bridge. Fairhurst wrote a passionate dissent, signed on to by Justices Susan Owens, Bridge and Chambers. Here are a few of the juicier excerpts:
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.
The relevant question is not whether same-sex marriage is so rooted in our traditions that it is a fundamental right, but whether the freedom to choose one’s own life partner is so rooted in our traditions.
Unfortunately, the plurality and concurrence are willing to turn a blind eye to DOMA’s discrimination because a popular majority still favors that discrimination.
Fairhurst then closes by quoting Justice Brandeis: “We must be ever on our guard, lest we erect our prejudices into legal principles.”
I concur. (With Brandeis.)
Man there’s a lot of stuff to read here, and I’m no constitutional scholar, so I’m not really in a position to provide an authoritative analysis on legal grounds. However, I must say that I am disappointed, though not surprised.
Perhaps common law and our Constitution do give us the right to discriminate against gays and lesbians in this way. I would hope not, but perhaps they do. And if so, that just strikes me as a sad injustice.
Civil marriage is a contract that confers certain legal rights on the participants, and I simply cannot see how same-sex marriage in any way threatens the rights of heterosexual couples. At the same time, same-sex couples will continue to live together and raise children as if they were legally married, regardless of this decision, and it’s hard to understand the state’s interest in denying these families the same rights accorded to others.
Essentially, Justice Fairhurst is correct. The Court just upheld the right of the state to discriminate against gays and lesbians. If those who are offended, disturbed or even disgusted by homosexuality want to celebrate this decision, well, that’s up to them.
Personally, I’m disappointed.