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Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 75934-1 (consolidated with 75956-1)
Title of Case: HEATHER ANDERSEN ANDERSEN ET AL VS KING COUNTY ET AL
File Date: 07/26/2006
Oral Argument Date: 03/08/2005
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 04-2-04964-4
Judgment or order under review
Date filed: 08/04/2004
Judge signing: Hon. William L Downing
JUSTICES
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Authored by Barbara A. Madsen
Concurring: Gerry L Alexander
Charles W. Johnson
COUNSEL OF RECORD
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Counsel for Appellant(s)
Kristofer John Bundy
King Co Admin Bldg
500 4th Ave Ste 900
Seattle, WA 98104-2316
Darren E. Carnell
Office of the Prosecuting Attorney
516 3rd Ave Rm W400
Seattle, WA 98104-2385
Janine Elizabeth Joly
Office of the Prosecuting Attorney
516 3rd Ave Rm W400
Seattle, WA 98104-2385
William Berggren Collins
Attorney at Law
Higways Licenses Bldg
PO Box 40100
Olympia, WA 98504-0100
Counsel for Respondent(s)
Patricia S. Novotny
Attorney at Law
3418 NE 65th St Ste a
Seattle, WA 98115-7397
Nancy Lynn Sapiro
Northwest Women's Law Center
907 Pine St Ste 500
Seattle, WA 98101-1818
Lisa Marie Stone
NW Women's Law Center
907 Pine St Ste 500
Seattle, WA 98101-1818
Jamie D. Pedersen
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle, WA 98104-1158
Bradley H. Bagshaw
Helsell Fetterman LLP
1001 4th Ave Ste 4200
Seattle, WA 98154-1154
Jennifer Suzanne Divine
Helsell Fetterman LLP
1001 4th Ave Ste 4200
Seattle, WA 98154-1154
Counsel for Respondents - Consolidated Case
Paul J. Lawrence
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle WA 98104-1158 (consolidated case)
Matthew J Segal
Preston Gates & Ellis LLP
925 4th Ave Ste 2900
Seattle WA 98104-1158 (consolidated case)
Roger Ashley Leishman
Davis Wright Tremaine
1501 4th Ave Ste 2600
Seattle WA 98101-1688 (consolidated case)
Aaron Hugh Caplan
Attorney at Law
ACLU of Washington
705 2nd Ave Ste 300
Seattle WA 98104-1799 (consolidated case)
Karolyn Ann Hicks
Stokes Lawrence PS
800 5th Ave Ste 4000
Seattle WA 98104-3179
Counsel for Appellant Intervenor(s)
Steven T. O'Ban
Ellis Li & McKinstry PLLC
601 Union St Ste 4900
Seattle, WA 98101-3906
Kristen Kellie Waggoner
Ellis Li & McKinstry PLLC
601 Union St Ste 4900
Seattle, WA 98101-3906
Amicus Curiae on behalf of UNITED FAMILIES INTERNATIONAL
Paul Benjamin Linton
Attorney at Law
921 Keystone Avenue
Northbrook, IL 60062-3614
Kenneth Duane Vanderhoef
Attorney at Law
520 Pike St Ste 1330
Seattle, WA 98101-4042
Richard G. Wilkins
Professor of Law
513 Jrcb Brigham Young University
Provo, UT 84602
Amicus Curiae on behalf of AMERICAN CENTER FOR LAW & JUSTICE
Gregory D. Lucas
Attorney at Law
606 110th Ave NE Ste 100
Bellevue, WA 98004-5107
Vincent P. McCarthy
American Center for Law & Justice
8 S. Main Street
P.O. Box 1629
New Milford, CT 06776
Amicus Curiae on behalf of ALLIANCE FOR MARRIAGE
Dwight G. Duncan
Attorney at Law
333 Faunce Corner Road
North Dartmouth, MA 02747
Thomas S. Olmstead
Attorney at Law
20319 Bond Rd NE
Poulsbo, WA 98370-9013
Amicus Curiae on behalf of CONCERNED WOMEN FOR AMERICA
David Knox Dewolf
Attorney at Law
Gonzaga School of Law
PO Box 3528
Spokane, WA 99220-3528
Theresa Ann Schrempp
Sonkin & Schrempp PLLC
12715 Bel Red Rd Ste 150
Bellevue, WA 98005-2627
Amicus Curiae on behalf of FAMILY RESEARCH COUNCIL
David R. Langdon
Langdon & Shafer LLC
11175 Reading Road, Suite 103
Cincinnati, OH 45241
Todd Michael Nelson
Ferring Nelson LLP
600 Stewart St Ste 1920
Seattle, WA 98101-1238
Amicus Curiae on behalf of FAMILIES NORTHWEST
Joshua K. Baker
Attorney at Law
1413 K Street NW
Suite 100
Washington, DC 20005
Lincoln J. Miller
Sherrard & Mcgonagle
PO Box 400
Poulsbo, WA 98370-0400
Roger D Sherrard
Attorney at Law
PO Box 400
Poulsbo, WA 98370-0400
Amicus Curiae on behalf of MARRIAGE LAW FOUNDATION
William C. Duncan
Marriage Law Foundation
251 West River Park Drive
Suite 175
Provo, UT 84604
Don Edward Powell
Attorney at Law
1025 Jadwin Ave
Richland, WA 99352-3437
Monte N. Stewart
Marriage Law Foundation
251 West River Park Drive
Suite 175
Provo, UT 84604
Amicus Curiae on behalf of SENIOR SERVICES OF SEATTLE/KING COUNTY
Lisa Ellen Brodoff
Seattle University Peterson Law Clinic
1112 E Columbia St
Seattle, WA 98122-4458
Amicus Curiae on behalf of SERVICES & ADVOCACY FOR GAY LESBIAN ET AL
Lisa Ellen Brodoff
Seattle University Peterson Law Clinic
1112 E Columbia St
Seattle, WA 98122-4458
Amicus Curiae on behalf of GREATER SEATTLE BUSINESS ASSOCIATION
Nancy Dykes Isserlis
Winston & Cashatt PS
Bank of America Financial Center
601 W Riverside Ave Ste 1900
Spokane, WA 99201-0695
Amicus Curiae on behalf of INLAND NORTHWEST BUSINESS ALLIANCE
Nancy Dykes Isserlis
Winston & Cashatt PS
Bank of America Financial Center
601 W Riverside Ave Ste 1900
Spokane, WA 99201-0695
Amicus Curiae on behalf of AMERICAN PSYCHOLOGICAL ASSOCATION
Colin Jeffrey Folawn
Schwabe Williamson & Wyatt
1420 5th Ave Ste 3010
Seattle, WA 98101-2339
Salvador Alejo II Mungia
Gordon Thomas Honeywell
PO Box 1157
Tacoma, WA 98401-1157
Amicus Curiae on behalf of WASHINGTON STATE PSYCHOLOGICAL ASSOCIATION
Colin Jeffrey Folawn
Schwabe Williamson & Wyatt
1420 5th Ave Ste 3010
Seattle, WA 98101-2339
Salvador Alejo II Mungia
Gordon Thomas Honeywell
PO Box 1157
Tacoma, WA 98401-1157
Amicus Curiae on behalf of COMPASSION IN DYING OF WASHINGTON ET AL
Robert A. Free
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
Ester Frances Greenfield
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
Kathleen A. Wareham
Attorney at Law
3213 W Wheeler St Ste 165
Seattle, WA 98199-3245
Amicus Curiae on behalf of STATE LEGISLATORS, REPRESENTATIVES, AND SENATORS
Hugh Davidson Spitzer
Foster Pepper PLLC
1111 3rd Ave Ste 3400
Seattle, WA 98101-3299
Amicus Curiae on behalf of LIBERTARIAN PARTY OF WASHINGTON STATE
Suzanne J. Thomas
Law Offices of Suzanne J Thomas PS
1325 4th Ave Ste 940
Seattle, WA 98101-2509
Amicus Curiae on behalf of LOG CABIN REPUBLICANS OF WASHINGTON
Suzanne J. Thomas
Law Offices of Suzanne J Thomas PS
1325 4th Ave Ste 940
Seattle, WA 98101-2509
Amicus Curiae on behalf of MULTIFAITH WORKS RELIGIOUS COALITION FOR EQUALITY ET
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635
Vanessa Soriano Power
Stoel Rives LLP
600 University St Ste 3600
Seattle, WA 98101-3197
Amicus Curiae on behalf of PRIDE FOUNDATION ET AL
Lindsay Taylor Thompson
Thompson Gipe PC
1900 W Nickerson St Ste 209
Seattle, WA 98119-1650
Amicus Curiae on behalf of LOREN MILLER BAR ASSOCIATION ET AL
Amanda J Beane
Attorney at Law
1201 3rd Ave Ste 4800
Seattle, WA 98101-3266
Kirstin S. Dodge
Perkins Coie LLP
The Pse Bldg
10885 NE 4th St Ste 700
Bellevue, WA 98004-5579
Karen M. McGaffey
Perkins Coie LLC
1201 3rd Ave 48th Fl
Seattle, WA 98101-3029
Melissa Robertson
Perkins Coie LLP
1201 3rd Ave Ste 4800
Seattle, WA 98101-3099
Amicus Curiae on behalf of AMERICAN FEDERATION OF TEACHERS ET AL
Kathleen Phair Barnard
Attorney at Law
18 W Mercer St Ste 400
Seattle, WA 98119-3971
Amicus Curiae on behalf of HISTORY SCHOLARS
Matthew Aaron Carvalho
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7098
Andrew Kamins
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7043
Molly a Terwilliger
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7098
Michael Richard Wrenn
Heller Ehrman LLP
701 5th Ave Ste 6100
Seattle, WA 98104-7098
Amicus Curiae on behalf of LEGAL MARRIAGE ALLIANCE OF WASHINGTON ET AL
Michael Richard Heath
Cairncross & Hempelmann PS
524 2nd Ave Ste 500
Seattle WA 98104-2323
Amicus Curiae on behalf of FAMILY LAW PRACTITIONERS
P. Craig Beetham
Eisenhower & Carlson
Wells Fargo Plaza
1201 Pacific Ave Ste 1200
Tacoma WA 98402-4395
Amicus Curiae on behalf of CHILDREN'S RIGHTS ORGANIZATIONS
Breean Lawrence Beggs
Center for Justice
35 W Main Ave Ste 300
Spokane WA 99201-0119
Amicus Curiae on behalf of WOMEN'S ORGANIZATIONS
Beth A Bloom
Frank Freed Subit & Thomas
705 2nd Ave Ste 1200
Seattle WA 98104-1798
Jennifer K. Brown
Legal Mementum
395 Hudson Street
New York NY 10014
Douglas NeJaime
Irell & Manella LLP
1800 Avenue of the Stars
Suite 900
Los Angeles CA 90067
Elizabeth L. Rosenblatt
Irell & Manella LLP
1800 Avenue of the Stars
Suite 900
Los Angeles, CA 90067
Deborah A. Widiss
Legal Momentum
395 Hudson Street
New York NY 10014
A PDF version of the opinion can be found at
http://www.courts.wa.gov/newsinfo/content/pdf/759341opn.pdf
HEATHER ANDERSEN and LESLIE )
CHRISTIAN; PETER ILGENFRITZ and )
DAVID SHULL; JOHANNA BENDER )
and SHERRI KOKX; JANET HELSON ) No. 75934-1
and BETTY LUNDQUIST; DAVID )
SERKIN-POOLE and MICHAEL )
SERKIN-POOLE; VEGAVAHINI )
SUBRAMANIAM and )
VAIJAYANTHIMALA NAGARAJAN; )
ELIZABETH REIS and BARBARA )
STEELE; and MICHELLE ESGUERRA; ) En Banc
and BOO TORRES DE ESGUERRA, )
)
Respondents, )
v. )
)
KING COUNTY; RON SIMS, King )
County Executive; and DEAN LOGAN, )
King County Director of Records, )
Elections and Licensing Services )
Division, )
)
Appellants, )
) Filed July 26, 2006
STATE OF WASHINGTON, )
)
Appellant, )
)
SENATOR VAL STEVENS; )
REPRESENTATIVE GIGI TALCOTT; )
COALITION FOR COMMUNITY )
DEVELOPMENT AND RENEWAL; )
NUWANDA ADAMS; TRACEY )
ARMSTRONG; GERALD BAKER; )
RICHARD BLAIR; ED COOK; RICK )
DANNER, SR.; BILL DEMPS; )
HARVEY DRAKE; GEORGE FROST; )
ELVIN GLADNEY; AARON )
HASKINS; RICK KINGHAM; )
SAMUEL K. LAW; JIMMIE W. LEE; )
DAN MAGALEI; DANA McCLENDON; )
TONY MORRIS; NATE MULLEN; )
PAUL OLVER; JOSEPH PHILLIPS; )
DAVID PIERSON; JOHN PENTON; )
KENNETH J. RANSFER, SR.; )
WILLIE C. SEALS, JR.; PAUL STOOT; )
WASHINGTON TALAGA; DANIEL )
VILLA; DAVID WALLACE; )
THOMAS L. WESTBROOK; DOUG )
WHEELER; EARNEST WILLIAMS; )
REGGIE WITHERSPOON; )
NATHANIEL WOLF; GRANT )
ZWEIGLE; and WASHINGTON )
EVANGELICALS FOR RESPONSIBLE )
GOVERNMENT, )
)
Appellants/Intervenors. )
)
)
CELIA CASTLE and BRENDA BAUER; )
PAMELA COFFEY and VALERIE )
TIBBETT; GARY MURELL and ) No. 75956-1
MICHAEL GYDE; CHRISTINA )
GAMACHE and JUDITH FLEISSNER; )
KEVIN CHESTNUT and CURTIS )
CRAWFORD; JEFF KINGSBURY and )
ALAN FULLER; LAURI CONNER and )
LEJA WRIGHT; ALLAN HENDERSON )
and JOHN BERQUIST; MARGE )
BALLACK and DIANE LANTZ; TOM )
DUKE and PHUOC LAM; and KATHY )
and KARRIE CUNNINGHAM, )
)
Respondents, )
v. )
)
STATE OF WASHINGTON, )
)
Appellant. )
)
MADSEN, J. - The trial courts in these consolidated cases held that
the provisions of Washington's 1998 Defense of Marriage Act (DOMA) that
prohibit same-sex marriages are facially unconstitutional under the
privileges and immunities and due process clauses of the Washington State
Constitution. King County and the State of Washington have appealed. The
plaintiffs-respondents, gay and lesbian couples, renew their constitutional
arguments made to the trial courts, including a claim that DOMA violates
the Equal Rights Amendment.
The two cases before us require us to decide whether the legislature
has the power to limit marriage in Washington State to opposite-sex
couples. The state constitution and controlling case law compel us to
answer "yes," and we therefore reverse the trial courts.
In reaching this conclusion, we have engaged in an exhaustive
constitutional inquiry and have deferred to the legislative branch as
required by our tri-partite form of government. Our decision accords with
the substantial weight of authority from courts considering similar
constitutional claims. 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.
It is important to note that the court's role is limited to determining the
constitutionality of DOMA and that our decision is not based on an
independent determination of what we believe the law should be. United
States Supreme Court Justice John Paul Stevens talked about the court's
role when he described several noteworthy opinions he had written or joined
while "convinced that the law compelled a result that {he} would have
opposed if {he} were a legislator." John Paul Stevens, United States
Supreme Court Justice, Judicial Predilections, Address to the Clark County
Bar Association, Las Vegas, Nev. 2 (Aug. 18, 2005). As Justice Stevens
explained, a judge's understanding of the law is a separate and distinct
matter from his or her personal views about sound policy. Id. at 17.
A judge's role when deciding a case, including the present one, is to
measure the challenged law against the constitution and the cases that have
applied the constitution. Personal views must not interfere with the
judge's responsibility to decide cases as a judge and not as a legislator.
This, after all, is one of the three legs supporting the rule of law.
Here, the solid body of constitutional law disfavors the conclusion that
there is a right to marry a person of the same sex. It may be a measure of
this fact that Justice Fairhurst's dissent is replete with citation to
dissenting and concurring opinions, and that, in the end, it cites very
little case law that, without being overstated, supports its conclusions.
Perhaps because of the nature of the issue in this case and the strong
feelings it brings to the front, some members of the court have
uncharacteristically been led to depart significantly from the court's
limited role when deciding constitutional challenges. For example, Justice
Fairhurst's dissent declines to apply settled principles for reviewing the
legislature's acts and instead decides for itself what the public policy of
this state should be. Justice Bridge's dissent claims that gay marriage
will ultimately be on the books and that this court will be criticized for
having failed to overturn DOMA. But, while same-sex marriage may be the
law at a future time, it will be because the people declare it to be, not
because five members of this court have dictated it.1 Justice J.M.
Johnson's concurrence, like Justice Fairhurst's dissent, also ignores the
proper standards for reviewing legislation. And readers unfamiliar with
appellate court review may not realize the extent to which this concurrence
departs from customary procedures because, among other things, it merely
repeats the result and much of the reasoning of the court's decision on
most issues, thus adding unnecessarily to the length of the opinions.
In brief, unless a law is a grant of positive favoritism to a minority
class, we apply the same constitutional analysis under the state
constitution's privileges and immunities clause that is applied under the
federal constitution's equal protection clause. DOMA does not grant a
privilege or immunity to a favored minority class, and we accordingly apply
the federal analysis. The plaintiffs have not established that they are
members of a suspect class or that they have a fundamental right to
marriage that includes the right to marry a person of the same sex.
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. Allowing same-sex couples to marry does
not, in the legislature's view, further these purposes.2 Accordingly,
there is no violation of the privileges and immunities clause.
There also is no violation of the state due process clause. DOMA
bears a reasonable relationship to legitimate state interests --
procreation and child-rearing. Nor do we find DOMA invalid as a violation
of privacy interests protected by article I, section 7 of the Washington
State Constitution. The people of Washington have not had in the past nor,
at this time, are they entitled to an expectation that they may choose to
marry a person of the same sex.
Finally, 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.
FACTS
In 1996, while a state constitutional challenge to same-sex marriage
was pending in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, reconsideration
granted in part, 74 Haw. 645, 875 P.2d 225 (1993), Congress enacted the
federal Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419
(1996), which provides that for purposes of all federal laws marriage means
only a legal union between a man and a woman as husband and wife. 1 U.S.C.
sec. 7. The act also authorizes states to decline to recognize same-sex
marriages that may be valid under the law of another state. 28 U.S.C. sec.
1738C. In 1998, Washington adopted the state Defense of Marriage Act
(DOMA). Laws of 1998, ch. 1. DOMA amended RCW 26.04.010 to describe
marriage as a civil contract that is valid only if "between a male and a
female" and to provide in RCW 26.04.020(1)(c) that a marriage contract is
prohibited for couples "other than a male and a female." In addition, RCW
26.04.020(3) states that "{a} marriage between two persons that is
recognized as valid in another jurisdiction is valid in this state only if
the marriage is not prohibited or made unlawful under subsection . . .
(1)(c) . . . of this section."
In Andersen v. King County, sixteen individuals, eight couples, sought
marriage licenses from King County. Their requests were denied because
each sought to marry a person of the same sex. They filed suit in King
County Superior Court seeking a writ of mandamus requiring issuance of
marriage licenses and a declaratory judgment that RCW 26.04.010 and RCW
26.04.020(1)(c) are unconstitutional. They claimed that the prohibition
against same-sex marriage violates article I, section 12 (the privileges
and immunities clause of the state constitution), article I, section 3 (the
due process clause of the state constitution), and article XXXI, section 1
(the 1972 Equal Rights Amendment (ERA) to the state constitution). The
county filed a third party complaint against the State of Washington asking
it to defend the state law. The court allowed intervention by two state
legislators and other individuals and organizations seeking to defend DOMA
(Intervenors). The parties moved for summary judgment. The trial court
granted summary judgment in favor of plaintiffs. In light of significant
authority to the contrary, the trial court declined to find that plaintiffs
constitute a suspect class as claimed. The court also found no ERA
violation because in Singer v. Hara, 11 Wn. App. 247, 522 P.2d 1187 (1974)
the Court of Appeals held that denial of same-sex marriage does not violate
the ERA. Relying on federal cases interpreting the federal constitution,
the trial court held DOMA unconstitutional under the privileges and
immunities and due process clauses of the state constitution on the basis
that it denies the plaintiffs the fundamental right to marry. The parties
agreed to a stay pending review by this court, and therefore the trial
court did not enter an order directing any specific remedy. The court
certified the matter under CR 54(b) for immediate appeal. The State,
county, and Intervenors petitioned for direct review, which this court
granted.
In Castle v. State, plaintiffs are 22 individuals, 11 gay and lesbian
couples, some who want to marry a person of the same sex and some who were
married elsewhere and want to have their marriages recognized in
Washington. They filed suit against the State of Washington in Thurston
County Superior Court seeking a declaratory judgment that RCW 26.04.010 and
RCW 26.04.020(1)(c) are facially unconstitutional under the state
constitution's privileges and immunities and due process clauses, and that
DOMA violates the ERA. The Thurston County Superior Court concluded it was
bound by Singer on the ERA claim but determined under an independent state
constitutional analysis that plaintiffs constitute a suspect class and that
plaintiffs' fundamental right to marry is at stake. Applying heightened
scrutiny, the court concluded that DOMA violates the privileges and
immunities clause of the state constitution. In light of this holding, the
court did not reach substantive due process and right to privacy claims
asserted by the plaintiffs, nor did it address any federal constitutional
issues. The court granted the plaintiffs' motion for summary judgment.
Its order was stayed pending further review. The State sought direct
review by this court, which was granted. Castle was consolidated with
Andersen.3
ANALYSIS
These cases are here following grants of summary judgment. Review of
a grant of summary judgment is de novo. Bank of Am. v. David W. Hubert,
P.C., 153 Wn.2d 102, 111, 101 P.3d 409 (2004). Summary judgment is proper
if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c). Further, de novo
review is proper where, as here, the issues presented are questions of law.
Labriola v. Pollard Gp., Inc., 152 Wn.2d 828, 832, 100 P.3d 791 (2004).
The Privileges and Immunities Clause
Article I, section 12 provides that "{n}o 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 State maintains that the Thurston County Superior Court
erroneously formulated and applied an independent constitutional analysis
when deciding whether DOMA violates the privileges and immunities clause.
Relying on Grant County Fire Protection District v. City of Moses Lake, 150
Wn.2d 791, 83 P.3d 419 (2004) (Grant County II), the State argues that the
only cases where the privileges and immunities clause provides broader
protection than the equal protection clause are cases involving a grant of
positive favoritism to minorities. In all other cases, the State urges,
the privileges and immunities clause provides the same protection and
should be applied using the same analysis as the equal protection clause.
Until Grant County II no recent decision, and none applying Gunwall,4
had applied or described circumstances under which a separate independent
state analysis might apply under the state privileges and immunities
clause. In Grant County II we determined that an independent analysis
applies only where the challenged legislation grants a privilege or
immunity to a minority class, that is, in the case of a grant of positive
favoritism.
As we explained in Grant County II, the text of the federal
constitution shows concern with "majoritarian threats of invidious
discrimination against nonmajorities," while the state provision "protects
as well against laws serving the interest of special classes of citizens to
the detriment of the interests of all citizens." Grant County II, 150
Wn.2d at 806-07. We recognized our framers' "concern with avoiding
favoritism" to a select group and that this "clearly differs from the main
goal of the equal protection clause, which was primarily concerned with
preventing discrimination against former slaves." Grant County II, 150
Wn.2d at 808 (citing Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81, 21
L. Ed. 394 (1872)).
We quoted with approval the concurrence in State v. Smith, 117 Wn.2d
263, 283, 814 P.2d 652 (1991) (Utter, J., concurring):
"Enacted after the Fourteenth Amendment, state privileges and immunities
clauses were intended to prevent people from seeking certain privileges or
benefits to the disadvantage of others. The concern was prevention of
favoritism and special treatment for a few, rather than prevention of
discrimination against disfavored individuals or groups."
Grant County II, 150 Wn.2d at 809 (emphasis added). "{T}he historical
context as well as the linguistic differences indicates that the Washington
State provision requires independent analysis from the federal provision
when the issue concerns favoritism." Grant County II, 150 Wn.2d at 809.
We also observed in Grant County II that early state cases
interpreting article I, section 12 "focused on the award of special
privileges rather than the denial of equal protection." Grant County II,
150 Wn.2d at 810.
"The aim and purpose of the special privileges and immunities provision of
Art. I, sec. 12, of the state constitution and of the equal protection
clause of the fourteenth amendment of the Federal constitution is to secure
equality of treatment of all persons, without undue favor on the one hand
or hostile discrimination on the other."
Grant County II, 150 Wn.2d at 810 (quoting State ex rel. Bacich v. Huse,
187 Wash. 75, 80, 59 P.2d 1101 (1936), overruled on other grounds by Puget
Sound Gillnetters Ass'n v. Moos, 92 Wn.2d 939, 603 P.2d 819 (1979)). Thus,
article I, section 12 has been historically viewed as securing equality of
treatment by prohibiting undue favor, while the equal protection clause has
been viewed as securing equality of treatment by prohibiting hostile
discrimination.
We explained in Grant County II that the Washington provision was
modeled after article I, section 20 of the Oregon State Constitution, which
the Oregon Supreme Court has described as "'"the antithesis of the
fourteenth amendment in that {the Oregon state constitution} prevent{s} the
enlargement of the rights of some in discrimination against the rights of
others, while the fourteenth amendment prevents the curtailment of
rights."'" Grant County II, 150 Wn.2d at 807 n.11 (quoting State v. Clark,
291 Or. 231, 236 n.8, 630 P.2d 810 (1981) (quoting State v. Savage, 96 Or.
53, 59, 184 P. 567 (1919))).
While derived from Oregon's provision, however, Washington's
privileges and immunities clause is not identical to Oregon's. Article I,
section 12's reference to corporations is not found in the Oregon
provision. This difference in language shows our state's framers' concern
with "undue political influence exercised by those with large
concentrations of wealth, which they feared more than they feared
oppression by the majority." Grant County II, 150 Wn.2d at 808 (citing
Brian Snure, Comment, A Frequent Recurrence to Fundamental Principles:
Individual Rights, Free Government, and the Washington State Constitution,
67 Wash. L. Rev. 669, 671-72 (1992); Jonathan Thompson, The Washington
Constitution's Prohibition on Special Privileges and Immunities: Real Bite
for "Equal Protection" Review of Regulatory Legislation?, 69 Temp. L. Rev.
1247, 1253 (1996)).
Moreover, Washington's constitution was adopted over two decades after
the Oregon State Constitution and in the interim important events occurred.
First, the Fourteenth Amendment was adopted, providing federal
constitutional protection from discrimination under state laws. Second,
legislative abuses were rampant -- the territorial legislature reportedly
passed few laws in 1862-63 but enacted numerous pieces of special
legislation; governors were criticized for abusing patronage power; there
was criticism of the judiciary due to "absentee judges, political
manipulations, and the lack of local control over appointments"; and the
"presence of powerful corporations in Washington was often at the root of
the governmental corruption." Snure, 67 Wash. L. Rev. at 671. The history
underlying our privileges and immunities clause is not the same as
Oregon's.
Accordingly, although plaintiffs urge that we apply an independent
state analysis under article I, section 12 like Oregon's independent
analysis in every context, we decline to do so because our state provision
has different language and a different history.
As we concluded in Grant County II, the concern underlying the state
privileges and immunities clause, unlike that of the equal protection
clause, is undue favoritism, not discrimination, and the concern about
favoritism arises where a privilege or immunity is granted to a minority
class ("a few"). Therefore, an independent state analysis is not
appropriate unless the challenged law is a grant of positive favoritism to
a minority class. In other cases, we will apply the same analysis that
applies under the federal equal protection clause.
Plaintiffs argue, however, that adoption of the ERA alters the Gunwall
analysis for article I, section 12. The Thurston County Superior Court
agreed. Gunwall states that "{e}ven where parallel provisions of the two
constitutions do not have meaningful differences, other relevant provisions
of the state constitution may require that the state constitution be
interpreted differently." Gunwall, 106 Wn.2d at 61.
The ERA provides: "Equality of rights and responsibilities under the
law shall not be denied or abridged on account of sex." Const. art. XXXI,
sec. 1. Prior to the ERA, this court had held that a statute disqualifying
pregnant women from unemployment insurance benefits discriminated against
women based on sex. The court concluded that a classification based on sex
is inherently suspect and must be subject to strict scrutiny. Hanson v.
Hutt, 83 Wn.2d 195, 201, 517 P.2d 599 (1973) (superseded by the ERA).
Following adoption of the ERA, the court held unconstitutional a statute
that prohibited a father of a child born out of wedlock from joining a
wrongful death action if he had failed to contribute to the support of the
child. Guard v. Jackson, 132 Wn.2d 660, 940 P.2d 642 (1997). The court
described Hanson and the strict scrutiny standard applied there. The court
then opined that the voters adopting the ERA presumably intended to do more
than repeat existing constitutional provisions. Guard, 132 Wn.2d at 663-
64. Accordingly, the court found that the ERA establishes an absolute bar
to sex discrimination subject to few exceptions (for actual physical
differences and affirmative action programs designed to eliminate past
discrimination). Guard, 132 Wn.2d at 664.
Plaintiffs urge, and the trial court agreed, that Guard demonstrates
that adoption of the ERA supports the view that the constitution as a whole
calls for a broader interpretation of individual rights under the
privileges and immunities clause than does the equal protection clause, and
that a higher level of scrutiny is required. See Castle v. State, No. 04-2-
00614-4, 2004 WL 1985215, *8 (Thurston County Super. Ct. Sept. 7, 2004).
The argument is flawed, however. First, this court said in Hanson
that the privileges and immunities clause and the equal protection clause
are "substantially identical in their impact upon state legislation."
Hanson, 83 Wn.2d at 200. Thus, it is obvious that there was no independent
state analysis in Hanson that could have been modified by Guard. Second,
and more importantly, Guard was decided solely under the ERA and contains
no analysis or holding under the privileges and immunities clause. Guard
simply does not indicate any broader protection for individual rights under
the privileges and immunities clause than had existed before adoption of
the ERA. Third, as Guard indicates, the ERA was intended by the voters to
stand independent of other provisions, not simply to repeat protections of
existing provisions. The ERA does not alter protections afforded under the
privileges and immunities clause.
We adhere to our holding in Grant County II that an independent state
analysis applies under article I, section 12 only where the challenged law
grants a privilege or immunity to a minority class, i.e., in the event of
positive favoritism. DOMA does not involve the grant of a privilege or
immunity to a favored minority class. Instead, the article I, section 12
issue is whether plaintiffs are discriminated against as members of a
minority class. Accordingly, we apply the same constitutional analysis
that applies under the equal protection clause of the United States
Constitution.
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. Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct.
1620, 134 L. Ed. 2d 855 (1996); State v. Harner, 153 Wn.2d 228, 236, 103
P.3d 738, 742 (2004). Plaintiffs maintain they are members of a suspect
class.5
Suspect Class
To qualify as a suspect class for purposes of an equal protection
analysis, the class must have suffered a history of discrimination, have as
the characteristic defining the class an obvious, immutable trait that
frequently bears no relation to ability to perform or contribute to
society, and show that it is a minority or politically powerless class.
Hanson, 83 Wn.2d at 199; City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 440-41, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); High Tech
Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990).
Race, alienage, and national origin are examples of suspect
classifications. City of Cleburne, 473 U.S. at 440. Suspect
classifications require heightened scrutiny because the defining
characteristic of the class is "so seldom relevant to the achievement of
any legitimate state interest that laws grounded in such considerations are
deemed to reflect prejudice and antipathy -- a view that those in the
burdened class are not as worthy or deserving as others." Id. There is no
dispute that gay and lesbian persons have been discriminated against in the
past.
The parties dispute whether homosexuality is immutable. The State
relies on the decision in High Tech Gays that homosexuality is behavioral,
and thus not immutable. The plaintiffs counter that the Ninth Circuit has
since "corrected" High Tech Gays and held that gay and lesbian persons
constitute a suspect class. They rely on Hernandez-Montiel v. Immigration
& Naturalization Serv., 225 F.3d 1084 (9th Cir. 2000), overruled in part on
other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), where
the court determined that asylum should be granted to an immigration
applicant, reasoning among other things that as a gay man with a female
sexual identity the applicant had a well-grounded fear of persecution as a
member of a particular social group. The court concluded the applicant was
a member of a particular social group because "{s}exual orientation and
sexual identity are immutable; they are so fundamental to one's identity
that a person should not be required to abandon them." Id. at 1093. This
conclusion was drawn from other immigration cases and secondary authority.
Notwithstanding Hernandez-Montiel, the Ninth Circuit has since
referenced High Tech Gays for its holding that gay and lesbian persons do
not constitute a suspect class. Flores v. Morgan Hill Unified Sch. Dist.,
324 F.3d 1130, 1137 (9th Cir. 2003) (citing High Tech Gays).
The plaintiffs do not cite other authority or any secondary authority
or studies in support of the conclusion that homosexuality is an immutable
characteristic. They focus instead on the lack of any relation between
homosexuality and ability to perform or contribute to society. But
plaintiffs must make a showing of immutability, and they have not done so
in this case.6
Finally, with regard to the ability to obtain redress through the
legislative process (the political powerless prong), several state statutes
and municipal codes provide protection against discrimination based on
sexual orientation and also provide economic benefit for same sex couples.7
Recently, the legislature amended the Washington State Law Against
Discrimination to prohibit discrimination on the basis of sexual
orientation. Engrossed Substitute H.B. 2661, 59th Leg., Reg. Sess. (Wash.
2006). In addition, the Intervenors point to evidence that a number of
openly gay candidates were elected to national, state, and local offices in
2004.
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. We conclude that
plaintiffs have not established that they satisfy the third prong of the
suspect classification test.
Our conclusion here, that plaintiffs have not established that they
are members of a suspect class, accords with the decisions of the
overwhelming majority of courts, which find that gay and lesbian persons do
not constitute a suspect class. See Lofton v. Sec'y of the Dep't of
Children & Family Servs., 358 F.3d 804, 818, 818 n.4 (11th Cir. 2004),
cert. denied, 543 U.S. 1081 (2005) (concluding that gay and lesbian persons
are not a suspect class and citing cases from the 4th, 5th, 6th, 7th, 9th,
and 10th Circuits that have reached the same conclusion). The Second and
Eighth Circuits have reached the same conclusion. Able v. United States,
155 F.3d 628, 632 (2d Cir. 1998); Richenberg v. Perry, 97 F.3d 256, 260
(8th Cir. 1996). The Court of Appeals held in Singer, 11 Wn. App. 247,
that gay and lesbian persons do not constitute a suspect class. And even
two state courts deciding that same-sex couples have a right to a civil
union or marriage did not find a suspect class. Baker v. State, 170 Vt.
194, 744 A.2d 864 (1999) (under the state constitution's common benefits
clause, plaintiffs seeking same-sex marriage are entitled to benefits and
obligations like those accompanying marriage); Goodridge v. Dep't of Pub.
Health, 440 Mass. 309, 798 N.E.2d 941 (2003) (denial of civil marriage to
same-sex couples violates state equal protection principles). And, while
the plaintiffs cite cases they say hold that gay and lesbian persons
constitute a suspect class, most do not support the proposition or are
otherwise distinguishable. In Tanner v. Oregon Health Sciences University,
157 Or. App. 502, 971 P.2d 435 (1998), the court applied an independent
analysis under Oregon's privileges and immunities clause and concluded that
gay and lesbian persons constitute a suspect class. The analysis bears
little resemblance to the analysis that applies under the equal protection
clause. They cite Li v. State of Oregon, No. 0403-03057 (Multnomah County
Circuit Ct. 2004). But this trial court decision was reversed by the
Oregon Supreme Court. Li v. State, 338 Or. 376, 110 P.3d 91 (2005).
Children's Hosp. & Med. Ctr. v. Bonta, 97 Cal. App. 4th 740, 769, 118 Cal.
Rptr. 2d 629 (2002) does not concern any issue involving gay and lesbian
persons, and says only in passing, without authority, that the issue before
it did not relate to a suspect class "such as race or sexual orientation."
Baehr, 74 Haw. 530, has a lead opinion signed by two justices who concluded
that gay and lesbian persons constitute a sex-based suspect class, a
concurring opinion of one justice who concluded that a fact question
existed as to whether homosexuality is biologically driven and thus a sex-
based class, and a two-justice dissent that disagreed. Before the issue
was resolved, the voters in Hawai'i passed a constitutional amendment
leaving it to the state legislature to decide whether same-sex marriage
would be allowed.8 Brause v. Bureau of Vital Statistics, No. 3AN-95-6562
CI, 1998 WL 88743 (Alaska Super. Ct. Feb. 27, 1998) is a trial court
decision finding that denial of marriage to same-sex couples violated the
Alaska State Constitution. The court engaged in a fundamental rights
analysis but said in dicta that it would also find that gay and lesbian
persons constitute a suspect class. The court did not engage in any
analysis or cite any authority regarding suspect classification, however.
Nine months after the decision was filed, the voters in Alaska passed a
constitutional amendment defining marriage as opposite-sex marriage.
The plaintiffs also suggest that Miguel v. Guess, 112 Wn. App. 536, 51
P.3d 89 (2002), Romer, 517 U.S. 620, and Lawrence v. Texas, 539 U.S. 558,
123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) indicate a trend toward
heightened scrutiny where gay and lesbian persons are concerned. Miguel
and Romer are based on another constitutional principle, however. In
Romer, the Court invalidated on equal protection grounds Colorado's
constitutional Amendment 2, which prohibited all legislative, executive, or
judicial action designed to protect gay and lesbian persons from
discrimination. The Court noted that "if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
legislative classification so long as it bears a rational relation to some
legitimate end." Romer, 517 U.S. at 631. The Court said that Amendment 2
"fails, indeed defies" this inquiry. Id. at 632. The court noted that
central to equal protection is the principle that "government and each of
its parts remain open . . . to all who seek its assistance," and "{a} law
declaring that in general it shall be more difficult for one group of
citizens than for all others to seek aid from the government is itself a
denial of equal protection in the most literal sense." Id. at 633. The
Court found that there was no legitimate government purpose of Amendment 2
and held the amendment did not satisfy rational relation review.
Similarly, in Miguel, where the plaintiff claimed her civil rights
were violated as a result of discrimination based on being a lesbian, the
court found that a discriminatory classification based on prejudice or bias
is not rationally related to a legitimate governmental purpose as a matter
of law. See also Cleburne Living Ctr., 473 U.S. at 448 (noting that while
private biases may be outside the reach the law, the law cannot give them
effect). Both Miguel and Romer rest on the principle that equal protection
is denied where the law's purpose is discrimination and it has no
legitimate government purpose. Neither case supports the proposition that
gay and lesbian persons constitute a suspect class. Indeed, as plaintiffs
recognize, neither case addressed suspect classifications; the court in
Miguel expressly declined to decide whether gay and lesbian persons
constitute a suspect class. Miguel, 112 Wn. App. at 552 n.3.
In Lawrence, the Court held that Texas's sodomy law violated equal
protection under a rational basis analysis, thus overruling its decision in
Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986).
Lawrence is widely viewed as reflecting changing societal attitudes toward
gay and lesbian persons. The Court emphasized "an emerging awareness that
liberty gives substantial protection to adult persons in deciding how to
conduct their private lives in matters pertaining to sex." Lawrence, 539
U.S. at 572. However, the Court did not address suspect classification and
invalidated the challenged law on the basis that it did not satisfy
rational basis review, a standard that would not apply if the court had
found an inherently suspect class.
In light of the lack of a sufficient showing of immutability and the
overwhelming authority finding that gay and lesbian persons are not a
suspect class for purposes of the equal protection clause, we decline to
conclude that gay and lesbian persons constitute an inherently suspect
class for purposes of article I, section 12.
Fundamental Right
Strict scrutiny is also required under an equal protection clause
analysis where a fundamental right is burdened by the challenged law.
State v. Harner, 153 Wn.2d 228, 235, 103 P.3d 738 (2004). The fundamental
right to marriage "is part of the fundamental 'right of privacy' implicit
in the Fourteenth Amendment's Due Process Clause". Zablocki v. Redhail,
434 U.S. 374, 384, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978). While the State
agrees that marriage is a fundamental right, it says that it does not
include same-sex marriage. Plaintiffs maintain they have the fundamental
right to marry the person of their choice.
Under a federal constitutional analysis, for a fundamental right to
exist it must be "objectively, 'deeply rooted in this Nation's history and
tradition' . . . and 'implicit in the concept of ordered liberty,' such
that 'neither liberty nor justice would exist if they were sacrificed.'"
Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed.
2d 772 (1997) (quoting Moore v. E. Cleveland, 431 U.S. 494, 503, 97 S. Ct.
1932, 52 L. Ed. 2d 531 (1977) (plurality opinion) and Palko v. Connecticut,
302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 2d 288 (1937)). A "'careful
description' of the asserted fundamental liberty interest" is required, and
the Court has noted that "{b}y extending constitutional protection to an
asserted right or liberty interest, we, to a great extent, place the matter
outside the arena of public debate and legislative action. We must
therefore 'exercise the utmost care whenever we are asked to break new
ground in this field . . . .'" Glucksberg, 521 U.S. at 721, 720 (quoting
Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993);
Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 117
L. Ed. 2d 261 (1992)). Fundamental liberty interests include the right to
marry, to have children, to direct the education and upbringing of one's
children, to marital privacy, to use contraception, to bodily integrity,
and to abortion. Glucksberg, 521 U.S. at 720 (citing cases).
As the plaintiffs argue and the State agrees, history and tradition
are not static. For example, in Loving v. Virginia, 388 U.S. 1, 87 S. Ct.
1817, 18 L. Ed. 2d 1010 (1967), the Court held that Virginia's
antimiscegenation statutes prohibiting interracial marriage violated the
equal protection and due process clauses. The Court first concluded that
the statutes rested solely on distinctions drawn according to race, and
because they prohibited only interracial marriages involving white persons,
their only justification was to "maintain White Supremacy." Loving, 388
U.S. at 11. After the Court found race discrimination in violation of
equal protection, the Court then determined that race discrimination was
not a legitimate basis for depriving the Lovings of their fundamental right
to marry. Loving, 388 U.S. at 11-12. The Court stated that the Fourteenth
Amendment requires that "the freedom of choice to marry not be restricted
by invidious racial discrimination." Loving, 388 U.S. at 12. At the time
of the decision, Virginia was one of 16 states prohibiting and punishing
marriages on the basis of racial classifications, and during the previous
15 years 14 states had repealed statutes outlawing interracial marriage.
Loving, 388 U.S. at 6 n.5. As the State says, whatever the history and
tradition of interracial marriage had been, by the time Loving was decided,
it had changed.9
Thus, recent history and tradition may also be relevant in deciding
whether a fundamental right is at stake.10
The State argues, however, that there is no history and tradition of
same-sex marriage in this country, and the basic nature of marriage as a
relationship between a man and a woman has not changed. With the exception
of Massachusetts, no state permits same-sex marriage (though, as noted, the
Vermont Supreme Court held that gay and lesbian couples "are entitled under
Chapter I, Article 7 of the Vermont Constitution to obtain the same
benefits and protections afforded by . . . law to married opposite-sex
couples." Baker, 170 Vt. at 224). At present, the great majority of
states have either statutes or constitutional amendments limiting marriage
to opposite-sex couples. Courts in other jurisdictions recently faced with
the issue have concluded that there is no tradition of same-sex marriage
and no fundamental right to marriage that includes same-sex marriage.
E.g., Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995); In re Kandu, 315
B.R. 123, 140 (Bankr. W.D. Wash. 2004); Standhardt v. Superior Court, 206
Ariz. 276, 284, 77 P.3d 451 (Ariz. Ct. App. 2003); Baehr, 74 Haw. at 556-57
(plurality opinion), 588 (Heen, J., dissenting).
Nor is there a tradition or history of same-sex marriage in this
state. Instead, prior to and after statehood, state laws reflected the
common law of marriage between a man and woman. See Code of 1881 sec.
2380; former RCW 26.04.010 (Laws of 1963 ch. 230, sec. 1); RCW 26.04.210
and its antecedents (referring to affidavits required for issuance of
marriage licenses and referring to the male and the female). Despite
plaintiffs' reference to an 1854 statute that contained no express
restriction on marriage other than consanguinity, bigamy, and age of
consent, Laws of 1854 (first session), p. 404, there really is no serious
claim that the early statutes defined anything but opposite-sex marriage.11
Nearly all United States Supreme Court decisions declaring marriage to
be a fundamental right expressly link marriage to fundamental rights of
procreation, childbirth, abortion, and child-rearing. In Skinner v.
Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942),
involving invalidation of a nonconsensual sterilization statute, the Court
said "{m}arriage and procreation are fundamental to the very existence and
survival of the race." In Loving, 388 U.S. at 12, the Court said that
"{m}arriage is one of the 'basic civil rights of man,' fundamental to our
very existence and survival" (quoting Skinner, 316 U.S. at 541). In
Zablocki, 434 U.S. 374, the Court invalidated on equal protection and due
process grounds a statute that prohibited marriage for any resident behind
in child support obligations. The Court noted that
{i}t is not surprising that the decision to marry has been placed on the
same level of importance as decisions relating to procreation, childbirth,
child rearing, and family relationships. . . . {I}t would make little
sense to recognize a right of privacy with respect to other matters of
family life and not with respect to the decision to enter the relationship
that is the foundation of the family in our society.
Zablocki, 434 U.S. at 386. The Court also quoted the statements made in
Skinner and Loving. Zablocki, 434 U.S. at 383, 384. See also, Maynard v.
Hill, 125 U.S. 190, 211, 8 S. Ct. 723, 31 L. Ed. 654 (1888) (marriage is
"the foundation of the family and of society, without which there would be
neither civilization nor progress").
Plaintiffs reason, however, and the King County Superior Court agreed,
that Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987)
demonstrates that the fundamental right to marry is not linked to
procreation. In Turner, the Court invalidated a regulation that prohibited
inmate marriage absent compelling reasons for marriage, holding that the
fundamental right to marry was impermissibly burdened. Rejecting the
contention that the interest at issue was inmate marriage, the Court said
that inmate marriages were, like others, expressions of emotional support
and public commitment, and may for some inmates be an exercise of religious
faith as well as an expression of personal dedication. Turner, 482 U.S. at
95-96. In addition, the Court said, most inmates would eventually be
released and thus most inmate marriages were formed in the expectation they
would be fully consummated. Turner, 482 U.S. at 96. Finally, the Court
noted marriage often is a precondition to government benefits, property
rights, and other benefits such as legitimation of children born out of
wedlock.
Like Skinner, Loving, and Zablocki, Turner involved burdens on
individuals seeking opposite-sex marriage. While the Court did not
expressly link marriage to procreation and other rights related to
procreation and children as it had in other cases, we also do not find in
Turner any signal that the case marked a turning point in the definition of
marriage as a fundamental right. We do not agree that the Court in Turner
intended its analysis to mean that marriage as a fundamental right is no
longer anchored in the tradition of marriage as between a man and a woman.12
Plaintiffs also rely on Lawrence. Lawrence did not address same-sex
marriage at all but private adult consensual sexual conduct. Further, as
noted, the Court did not apply strict scrutiny as would be expected if a
fundamental right were at stake. Finally, the Court specifically said the
case "does not involve whether the government must give formal recognition
to any relationship that homosexual persons seek to enter." Lawrence, 539
U.S. at 578.
We agree, as plaintiffs maintain, that marriage is an evolving
institution. They point, for example, to changes regarding recognition of
common law marriages and departure from the historical denial of the right
for slaves to marry. They point out other changes related to marriage and
personal privacy, for example, decriminalization of extramarital sex,
abandonment of tort actions for interference by third parties, and
elimination of stigma and legal barriers relating to illegitimate children.
However, although marriage has evolved, it has not included a history
and tradition of same-sex marriage in this nation or in Washington State.
The vast majority of states historically and traditionally have
contemplated marriage only as opposite-sex marriage, and the majority of
states, including Washington, have recently reaffirmed this understanding
and tradition. Federal decisions have found the fundamental right to marry
at issue only where opposite-sex marriage was involved. Loving, Zablocki,
and Skinner tie the right to procreation and survival of the race.
Plaintiffs have not established that at this time the fundamental right to
marry includes the right to marry a person of the same sex. As we have
noted, however, several state statutes and municipal codes provide
protection to gay and lesbian persons. That some laws provide such
protections show change is occurring in our society, but 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.
Justice Fairhurst's dissent proposes, nevertheless, that there is a
fundamental right to marry a person of the same sex. This is an
astonishing conclusion, given the lack of any authority supporting it; no
appellate court applying a federal constitutional analysis has reached this
result. Moreover, the only cases Justice Fairhurst's dissent cites that
actually say there is a fundamental right to marry a person of the same sex
is Goodridge, supra, and a trial court decision, i.e., Brause, supra, an
unpublished Alaska trial court order. Dissent (Fairhurst, J.) at 22-23
n.24, 26, 36 n.29. Both cases were decided on state constitutional
grounds, and in Goodridge the court explained that the state due process
constitutional analysis that it applied differs from the federal due
process analysis. Goodridge, 440 Mass. at 328-29, 328 n.18.
Rational Basis Review
Plaintiffs have not established that gay and lesbian persons
constitute a suspect class or that the fundamental right to marry includes
the right to same-sex marriage. Accordingly, applying an analysis under
article I, section 12 that is coextensive with that under the equal
protection clause, the appropriate standard of review is rational basis
review.
Under rational basis review plaintiffs have the burden of proving that
the classification drawn by the law is not rationally related to a
legitimate state interest. DeYoung v. Providence Med. Ctr., 136 Wn.2d 136,
144, 960 P.2d 919 (1998). The statute is presumed constitutional. Heller
v. Doe, 509 U.S. 312, 319, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993); State
v. Shawn P., 122 Wn.2d 553, 561, 859 P.2d 1220 (1993). Under the rational
basis standard, the court may assume the existence of any conceivable state
of facts that could provide a rational basis for the classification. Bd.
of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 367, 121
S. Ct. 955, 148 L. Ed. 2d 866 (2001); Heller, 509 U.S. at 320; Seeley v.
State, 132 Wn.2d 776, 795, 940 P.2d 604 (1997). Production of empirical
evidence is not required to sustain the rationality of a classification.
Gossett v. Farmers Ins. Co., 133 Wn.2d 954, 979-80, 948 P.2d 1264 (1997)
(citing Heller, 509 U.S. at 320). In fact, "the rational basis standard
may be satisfied where the 'legislative choice . . . {is} based on rational
speculation unsupported by evidence or empirical data.'" DeYoung, 136
Wn.2d at 148 (alteration in original) (quoting Fed. Commc'ns Comm'n v.
Beach Commc'ns, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211
(1993)).13 In addition, within limits, a statute generally does not fail
rational basis review on the grounds of over- or under-inclusiveness; "{a}
classification does not fail rational-basis review because 'it is not made
with mathematical nicety or because in practice it results in some
inequity.'" Heller, 509 U.S. at 321 (quoting Dandridge v. Williams, 397
U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970)); Campbell v. Dep't
of Soc. & Health Servs., 150 Wn.2d 881, 901, 83 P.3d 999 (2004); Gossett,
133 Wn.2d at 979-80.
Plaintiffs first contend that Washington's DOMA, like Colorado's
Amendment 2 at issue in Romer, was enacted for the purpose of
discriminating against gay and lesbian persons -- that DOMA arises from
class-based animus. This is, they maintain, per se unreasonable, citing
Romer, 517 U.S. at 633-34, Cleburne, 473 U.S. at 448, and Miguel, 112 Wn.
App. at 553. Plaintiffs rely on legislative history, which they say is
rife with evidence of DOMA's prejudicial underpinnings. They say that the
act's prime sponsor distributed an article on the House floor saying that
gays and lesbians are not normal, House Floor Debate at 23 (Wash. Mar. 18,
1997) (CP at 467), and told the legislature's only openly gay member that
homosexuals should be put on a boat and shipped out of the country, House
Floor Debate at 40 (Wash. Feb. 4, 1998), and that another legislator said
that when individuals engage in homosexual activity they confirm a
"disordered sexual inclination" that is "essentially self-indulgent," House
Floor Debate at 44 (Wash. Feb. 4, 1998) (CP at 471). They also point to
antigay sentiments expressed during legislative committee meetings.
In connection with the argument that DOMA was enacted to discriminate,
plaintiffs also contend that when there is evidence of some discriminatory
intent, a presumption of invalidity arises and the burden shifts to the
government to show that the same decision would have been made absent the
discriminatory purpose. They say that Romer and Lawrence make clear that a
burden is placed on the State where discrimination against gays and
lesbians is concerned, even under a rational relationship analysis.
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.
Turning next to the plaintiffs' proposed analytical framework, we
conclude that it does not apply. Plaintiffs rely on cases that address
burden shifting and a heightened level of scrutiny in the context of a law
claimed to discriminate against members of a suspect or semisuspect class.
E.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) (race); Cook v. Babbitt, 819 F.
Supp. 1 (D.D.C. 1993) (gender). But to come within this framework,
plaintiffs must show that they are members of a suspect class.
Discrimination against a class, in and of itself, does not make the class a
suspect class. And a law that affirmatively discriminates does not, for
that reason alone, require heightened scrutiny or that the government bear
the burden of
establishing the validity of the challenged law. For example,
discrimination against classes of persons based on age or disability does
not implicate either a heightened standard of review or burden shifting.
See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312-14, 96 S. Ct. 2562, 49
L. Ed. 2d 520 (1976) (age); Garrett, 531 U.S. at 365-68 (disability). As
we have concluded, the plaintiffs have not shown they are members of a
suspect class.
Plaintiffs also rely on Lawrence and Romer. Both of these cases were
decided on rational basis grounds, and neither mentions any burden-shifting
framework. Moreover, while in Romer Colorado's Amendment 2 was found to be
motivated by animus and invalidated, the Court determined both that it was
motivated solely by animus and that it lacked any legitimate governmental
purpose. Romer, 517 U.S. at 634-35. Romer exemplifies the principle that
where legislation is subject to rational basis review, it will not be found
unconstitutional on the basis that it was motivated by animus unless it
also lacks any rational relationship to a legitimate governmental purpose.
This principle was explained in Garrett, where the Court, addressing a
claim premised on Cleburne, said that Cleburne does not "stand{} for the
broad proposition that state decisionmaking reflecting 'negative attitudes'
or 'fear' necessarily runs afoul of the Fourteenth Amendment." Garrett,
531 U.S. at 367 (quoting Garrett, 531 U.S. at 382 (Breyer, J.,
dissenting)). Instead, "{a}though such biases may often accompany
irrational (and therefore unconstitutional) discrimination, their presence
alone does not a constitutional violation make." Id. (emphasis added).
The court emphasized: "'{M}ere negative attitudes, or fear,
unsubstantiated by factors which are properly cognizable in {the context},
are not permissible bases" for differing treatment. Id. (quoting Cleburne,
473 U.S. at 448). Thus, as the Court explained, under rational basis
review, even if animus in part motivates legislative decision making,
unconstitutionality does not follow if the law is otherwise rationally
related to legitimate state interests. Garrett, 531 U.S. at 367.
Further, as the State points out, we view with caution comments of
individual legislators said to show improper legislative intent in passing
legislation, and "a court may not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive." State v.
Brayman, 110 Wn.2d 183, 204, 751 P.2d 294 (1988) (emphasis added).
Whether some legislators voted for DOMA out of prejudice against gay
and lesbian persons does not alone determine the constitutionality of DOMA
under a rational basis equal protection analysis. If the law otherwise
defines classifications rationally related to legitimate state interests,
it does not violate the equal protection clause. Accordingly, the same is
true applying an equal protection analysis under article I, section 12.
A stated purpose of DOMA is to reaffirm the State's historical
commitment to the institution of marriage between a man and woman. Laws of
1998, ch. 1, sec. 1. The State contends that procreation is a legitimate
government interest justifying the limitation of marriage to opposite-sex
couples. The State reasons that partners in a marriage are expected to
engage in exclusive sexual relations with children the probable result and
paternity presumed. See, e.g., Singer, 11 Wn. App. at 259; Standhardt, 206
Ariz. at 287; Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971). The
State reasons that no other relationship has the potential to create,
without third party involvement, a child biologically related to both
parents, and the legislature rationally could decide to limit legal rights
and obligations of marriage to opposite-sex couples. The legislature could
also have found that encouraging marriage for opposite-sex couples who may
have relationships that result in children is preferable to having children
raised by unmarried parents. See Morrison v. Sadler, 821 N.E.2d 15, 25
(Ind. Ct. App. 2005) (the "institution of opposite-sex marriage both
encourages such couples to enter into a stable relationship before having
children and to remain in such a relationship if children arrive during the
marriage unexpectedly"); Hernandez, 2006 N.Y. slip op. 5239, at *6-7. In
addition, the need to resolve the sometimes conflicting rights and
obligations of the same-sex couple and the necessary third party in
relation to a child also provides a rational basis for limiting traditional
marriage to opposite-sex couples.
Plaintiffs maintain, however, that the right to procreate does not
hinge on marital status. Individuals may marry regardless of fertility or
intent to procreate. The sterile and elderly are allowed to marry, and
married couples are not required to have children. See Griswold v.
Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (right
of married couples to use contraception). Washington law does not restrict
sex to marriage. Moreover, plaintiffs correctly say, same-sex couples can
and do legally procreate through assisted reproduction and adoption. See
RCW 26.33.140 (adoption not limited to married couples). And unfit
biological parents may lose custody of children. In addition,
nonbiological bonding with children has been recognized. See, e.g., In re
Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005), cert. denied, 126 S.
Ct. 2021 (2006).
Plaintiffs also rely on Goodridge, where the Massachusetts court
rejected the argument that procreation justified limitation of marriage to
opposite-sex couples. The court said that "{t}he 'marriage is procreation'
argument singles out the one unbridgeable difference between same-sex and
opposite-sex couples, and transforms that difference into the essence of
legal marriage." Goodridge, 440 Mass. at 333. The court held that "it is
the exclusive and permanent commitment of the marriage partners to one
another, not the begetting of children, that is the sine qua non of civil
marriage." Goodridge, 440 Mass. at 332.
But as Skinner, Loving, and Zablocki indicate, marriage is
traditionally linked to procreation and survival of the human race.
Heterosexual couples are the only couples who can produce biological
offspring of the couple. And the link between opposite-sex marriage and
procreation is not defeated by the fact that the law allows opposite-sex
marriage regardless of a couple's willingness or ability to procreate. The
facts that all opposite-sex couples do not have children and that single-
sex couples raise children and have children with third party assistance or
through adoption do not mean that limiting marriage to opposite-sex couples
lacks a rational basis. Such over- or under-inclusiveness does not defeat
finding a rational basis.
The rational basis standard of review is "highly deferential to the
legislature." In re Det. of Thorell, 149 Wn.2d 724, 749, 72 P.3d 708
(2003). As noted, under this standard any conceivable set of facts may be
considered that support the classification drawn, and over-and under-
inclusiveness generally does not foreclose finding a rational basis for
legislation. Under the highly deferential rational basis inquiry,
encouraging procreation between opposite-sex individuals within the
framework of marriage is a legitimate government interest furthered by
limiting marriage to opposite-sex couples.
The State also argues that rearing children in a home headed by their
opposite-sex parents is a legitimate state interest furthered by limiting
marriage to opposite-sex couples because children tend to thrive in
families consisting of a father, mother, and their biological children.
The State cites testimony before the House Law and Justice Committee on
February 4, 1998, during the hearing on HB 1130, some of which cited
studies said to support this proposition.
Plaintiffs maintain, however, that the argument discounts all same-sex
couples who bear and raise children. They urge that while protecting
children is a "paramount" state concern, "{r}estricting marriage to
opposite-sex couples . . . cannot plausibly further this policy."
Goodridge, 440 Mass. at 333-34. The Massachusetts court in Goodridge
reasoned that "'{t}he demographic changes of the past century make it
difficult to speak of an average American family. The composition of
families varies greatly from household to household.'" Goodridge, 440
Mass. at 334 (quoting Troxel v. Granville, 530 U.S. 57, 63, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000)). The court in Goodridge also noted that the
State had responded to the changes by moving to strengthen families in its
many variations, for example, through paternity statutes, grandparent
visitation statutes, and repudiating common law disadvantages attending
illegitimacy. Goodridge, 440 Mass. at 334.
But given the rational relationship standard and that the legislature
was provided with testimony that children thrive in opposite-sex marriage
environments, the legislature acted within its power to limit the status of
marriage. That is, the legislature was entitled to believe that providing
that only opposite-sex couples may marry will encourage procreation and
child-rearing in a "traditional" nuclear family where children tend to
thrive. We reiterate that the rational basis standard is a highly
deferential standard. This deference is based on the separation of powers
doctrine. See Cleburne, 473 U.S. at 441-42 (where rational basis review is
the applicable standard "the courts have been very reluctant . . . with our
respect for the separation of powers, to closely scrutinize legislative
choices as to whether, how, and to what extent {legitimate state} interests
should be pursued"). It cannot be overemphasized that our state
constitution provides for a representative democracy and that the people,
who have consented to be governed, speak through their elected
representatives. When no fundamental right or suspect class exists, the
public consensus, as evidenced by legislation adopted after robust debate,
must be given great deference. See Glucksberg, 521 U.S. at 720.
We emphasize that it is not the province of this court to pass on the
merits of the arguments and studies presented to the legislature as it
considered whether to enact DOMA, contrary to the apparent belief reflected
in Justice J.M. Johnson's concurrence. We note, nonetheless, that the
studies and arguments that the concurrence recites as if embodying
unassailable truths are in fact assailed by the petitioners. 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. In short, while the
legislature was entitled to rely on the arguments and studies presented to
the legislature, this court can and must do no more than assure itself that
the rational basis standard is satisfied.
And at the risk of sounding monotonous, we repeat that the rational basis
standard is extremely deferential. There are many examples of laws upheld
on rational basis grounds where strong policy arguments opposing such laws
have been advanced. But legislative bodies, not courts, hold the power to
make public policy determinations, and where no suspect classification or
fundamental right is at stake, that power is nearly limitless. The United
States Supreme Court explained in Garrett, 531 U.S. at 367-68, for example,
that since the disabled do not constitute a suspect class (and there is no
fundamental right to special accommodations), there is no constitutional
requirement that states must make special accommodations for the disabled
"so long as their actions toward such individuals are rational. They could
quite hardheadedly -- and perhaps hardheartedly -- hold to job-
qualifications requirements which do not make allowance for the disabled."16
The Court has also upheld laws providing for mandatory retirement at a
certain age on rational basis grounds even where some individuals are
unquestionably of sufficient health and ability to continue the particular
employment. E.g., Murgia, 427 U.S. at 315-17 (mandatory retirement at age
50 for Massachusetts State Police). The Court explained that it is not up
to a court to determine whether such a statute is wise, whether it best
fulfills the relevant social and economic objectives, or whether a more
just and humane system might be developed. Murgia, 427 U.S. at 317 (citing
Dandridge v. Williams, 397 U.S. 471, 487, 90 S. Ct. 1153, 25 L. Ed. 2d 491
(1970)).
Our own case law is in accord. For example, in a case brought by a
terminally ill man challenging the unavailability of marijuana for medical
uses, this court declined, when applying rational basis review, to second-
guess the legislature's classification of marijuana as a schedule I
controlled substance where it involved legislative conclusions concerning
complicated and controversial scientific and moral issues. Seeley, 132
Wn.2d at 796-808. Nor do we second-guess the legislature in cases where
the wisdom of its acts seems questionable. In In re License Revocation of
Kindschi, 52 Wn.2d 8, 12, 319 P.2d 824 (1958), the court concluded on
rational basis review that the legislature is entitled to enact a law
making income tax fraud a ground for revoking or suspending a doctor's
license because there is a rational basis between such fraudulent conduct
and one's trustworthiness to practice medicine.
Finally, Justice Fairhurst's dissent incorrectly asserts that we have
engaged in an incorrect analysis because, the dissent believes, the
question is not whether allowing opposite-sex couples the right to marry
furthers governmental interests in procreation and raising children in a
healthy environment but, rather, whether those interests are furthered by
denying same-sex couples the right to marry. Initially, the dissent's
rewording of the issue fails to acknowledge that over- and under-
inclusiveness do not invalidate an enactment under rational basis review.
Moreover, the correct inquiry under rational basis review is whether
allowing opposite-sex couples to marry furthers legitimate governmental
interests. As the United States Supreme Court has explained: "In the
ordinary case, a law will be sustained if it can be said to advance a
legitimate government interest, even if the law seems unwise or works to
the disadvantage of a particular group, or if the rationale for it seems
tenuous." Romer, 517 U.S. at 632 (emphasis added). Granting the right to
marry to opposite-sex couples clearly furthers the governmental interests
advanced by the State. We add that the constitutional inquiry means little
if the entire focus, and perhaps outcome, may be so easily altered by
simply rewording the question.
We do not dispute that same-sex couples raise children or that the
demographics of "family" have changed significantly over the past decades.
We recognize that same-sex couples enter significant, committed
relationships that include children, whether adopted, conceived through
assisted reproduction, or brought within the family of the same-sex couple
after the end of a heterosexual relationship. We do not doubt that times
have changed and are changing, and that courts and legislatures are
increasingly faced with the need to answer significant legal questions
regarding the families and property of same-sex couples. See, e.g., In re
Parentage of L.B., 155 Wn.2d 679 (after end of same-sex relationship, one
of former partners sought parental rights); Vasquez v. Hawthorne, 145 Wn.2d
103, 33 P.3d 735 (2001) (claim to estate of decedent brought by decedent's
alleged gay life-partner); Gormley v. Robertson, 120 Wn. App. 31, 83 P.3d
1042 (2004) (property distribution following end of same-sex meretricious
relationship); In re Dependency of G.C.B., 73 Wn. App. 708, 870 P.2d 1037
(1994) (noting placement of a child in foster care with a same-sex couple);
RCW 26.33.140(2) (providing that any person may be an adoptive parent).
We are also acutely aware, from the records in these cases and the
briefing by the plaintiffs and the amici supporting them, that many day-to-
day decisions that are routine for married couples are more complex, more
agonizing, and more costly for same-sex couples. A married person may be
entitled to health care and other benefits through a spouse.17 A married
person's property may pass to the other upon death through intestacy laws
or under community property laws or agreements. Married couples may
execute community property agreements and durable powers of attorney for
medical emergencies without fear they will not be honored on the basis the
couple is of the same sex and unmarried. Unlike heterosexual couples who
automatically have the advantages of such laws upon marriage, whether they
have children or not, same-sex couples do not have the same rights with
regard to their life partners that facilitate practical day-to-day living,
involving such things as medical conditions and emergencies (which may
become of more concern with aging), basic property transactions, and
devolution of property upon death.
But plaintiffs have affirmatively asked that we not consider any claim
regarding statutory benefits and obligations separate from the status of
marriage. We thus have no cause for considering whether denial of
statutory rights and obligations to same-sex couples, apart from the status
of marriage, violates the state or federal constitution.
We conclude that limiting marriage to opposite-sex couples furthers
the State's interests in procreation and encouraging families with a mother
and father and children biologically related to both.
The plaintiffs have not established that DOMA is unconstitutional
under article I, section 12 of the Washington State Constitution.
Due Process and Privacy; Article I, Sections 3 and 7
Plaintiffs maintain that the right to due process under article I,
section 3, and the right to privacy under article I, section 7 together
protect an individual's liberty interest to structure his or her life in
the most intimate and defining ways without interference by the State.
Thus, they contend, DOMA violates the right of personal autonomy protected
by the privacy and due process clauses of the state constitution.
The state constitution's due process clause provides "{n}o person
shall be deprived of life, liberty, or property, without due process of
law." Const. art. I, sec. 3. Article I, section 7 provides that "{n}o
person shall be disturbed in his private affairs, or his home invaded,
without authority of law."
Initially, plaintiffs do not propose a constitutional analytical
framework under article I, section 3 and article I, section 7, together,
that differs from an analysis under each of the provisions separately.
They also do not make a Gunwall argument in an attempt to show that an
independent state analysis is appropriate under the due process clause,
article I, section 3.18 We therefore rely on our conclusion above under a
federal constitutional analysis that the fundamental right to marriage does
not include the right to same-sex marriage. In the absence of a
fundamental right at stake, the due process inquiry is whether the law
bears a reasonable relationship to a legitimate state interest.
Glucksberg, 521 U.S. at 722; In re Pers. Restraint of Metcalf, 92 Wn. App.
165, 176-77, 963 P.2d 911 (1998). As we concluded in connection with our
inquiry under article I, section 12, where we applied a federal equal
protection analysis, DOMA satisfies rational basis review. Thus, we
conclude that DOMA does not violate article I, section 3.
Turning to article I, section 7, we have said in the context of search
and seizure cases that there is no need to consider whether to apply an
independent state constitutional analysis in a new context. State v.
McKinney, 148 Wn.2d 20, 26, 60 P.3d 46 (2002). The only relevant question
is whether article I, section 7 affords enhanced protection in the
particular context. McKinney 148 Wn.2d at 26.
We conclude that the same is true in the context of privacy interests
and that McKinney provides guidance for deciding whether a protected
privacy right exists. There, we reasoned that whether there had been an
unconstitutional search of drivers' records in violation of article I,
section 7 depended upon whether there had been an intrusion into private
affairs. We resolved this question through a two-step analysis driven by
the often noted principle that privacy interests protected under article I,
section 7 are "'those privacy interests which citizens of {Washington} have
held, and should be entitled to hold, safe from governmental trespass.'"
McKinney, 148 Wn.2d at 27 (quoting State v. Myrick, 102 Wn.2d 506, 511, 688
P.2d 151 (1984)). Thus, a court should first examine the historical
protection afforded, i.e., the inquiry into what interests citizens have
held, and then ask whether the expectation of privacy is one that citizens
should be entitled to hold. McKinney, 148 Wn.2d at 27-32.
As we explained earlier in this opinion, there is no history of
marriage in this state that includes same-sex marriage. Thus, the citizens
of Washington have not held a privacy interest in marriage that includes a
right to marry a person of the same sex.
Turning to whether the right to marry the person of choice who is of
the same sex is an expectation that citizens are entitled to hold,
plaintiffs argue that citizens of this State should expect that the State
will not interfere with the way they structure their lives in its most
intimate and defining way, including the choice of a spouse. Except for
search and seizure cases, nearly every state case they cite regarding
privacy rights rests on federal constitutional analysis or an analysis
coextensive with a federal analysis. See, e.g., In re Custody of Smith,
137 Wn.2d 1, 15, 969 P.2d 21 (1998), aff'd sub nom. Troxel, 530 U.S. 57
(third party visitation rights; federal constitutional analysis); Bedford
v. Sugarman, 112 Wn.2d 500, 507-12, 772 P.2d 486 (1989) (constitutionality
of law providing for in-kind assistance to indigent alcohol and drug
addicts; court generally described the constitutional right of privacy
under the United States Constitution and specifically declined to apply
article I, section 7 in the absence of a Gunwall argument); In re Welfare
of Colyer, 99 Wn.2d 114, 120, 660 P.2d 738 (1983) (court adds in a single
sentence that "{s}upport for th{e court's} holding is also found in our
state constitution," citing article I, section 7); State v. Koome, 84 Wn.2d
901, 530 P.2d 260 (1975) (statute requiring parental consent for abortion
unconstitutional; decided under federal law); Voris v. Wash. State Human
Rights Comm'n, 41 Wn. App. 283, 290, 704 P.2d 632 (1985) (claim that anti-
discrimination statute pertaining to renting property violated privacy
rights of association in the home; court cited United States Supreme Court
and state decisions, with no mention of article I, section 7).
In O'Hartigan v. Department of Personnel, 118 Wn.2d 111, 117-18, 821
P.2d 44 (1991), also cited by the plaintiffs, the court held that a
rational basis standard applied in resolving a claim that the applicant's
privacy rights were violated by a requirement that she submit to a
polygraph exam as part of her application for a law enforcement position.
The court also observed that the right to privacy under the federal
constitution includes the right to autonomous decision making, recognized
as a fundamental right. O'Hartigan, 118 Wn.2d at 117. "This right
involves issues related to marriage, procreation, family relationships,
child rearing and education." Id. (citing Whalen v. Roe, 429 U.S. 589, 600
n.26, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)); see also State v. Farmer, 116
Wn.2d 414, 429, 805 P.2d 200 (1991) (observing that "{t}he United States
Supreme Court recognizes such a fundamental right of privacy to exist in
matters relating to freedom of choice regarding one's personal life";
recognizing a "similar" right of privacy under article I, section 7).
Plaintiffs also rely heavily, if not primarily, on federal cases, including
Lawrence, Loving, Zablocki, and Turner.
State law has always been, however, that marriage is between a man and
a woman. DOMA reaffirms what has historically been the law of Washington
and the historical and continuing understanding of its citizens that
marriage is between a man and woman. Although we recognize a right of
privacy in personal autonomy, we are not persuaded that it includes the
right to marry a person of the same sex. And, as explained earlier in this
opinion, the federal cases upon which plaintiffs rely do not support their
claim of a right to marry the person of their choice who is of the same
sex. There is evidence that times are changing, but we cannot conclude
that at this time the people of Washington are entitled to hold an
expectation that they may marry a person of the same sex.
Plaintiffs have not established that a right to marry the person of
their choice who is of the same sex is a right that citizens of this State
have held or are entitled to hold.
Plaintiffs suggest, though, that article I, section 32 also supports
their claim of a privacy interest. Article I, section 32 provides that
"{a} frequent recurrence to fundamental principles is essential to the
security of individual rights . . . ." Plaintiffs urge that this provision
"has been cited as a reason for analyzing principles supporting a right to
privacy," Seeley, 132 Wn.2d at 811, but do not develop the argument to any
significant degree. Further, their reference to Seeley is a bit
misleading. In Seeley we noted that "Washington jurisprudence has yet to
see a consistent approach to art. I, sec. 32" and disclosed that the
opinions that had cited the provision as a reason for analyzing principles
supporting a right to privacy were dissenting and concurring opinions.
Seeley, 132 Wn.2d at 811, 812 (citing opinions). Plaintiffs do not provide
a convincing argument that article I, section 32 leads to a different
result in this case.
We conclude that plaintiffs have not established that they have a
privacy right under article I, section 3 and article I, section 7 to marry
the person of their choice who is of the same sex. Because plaintiffs have
not shown that they have a cognizable privacy interest in the decision to
marry the person of their choice who is of the same sex, DOMA is not
facially unconstitutional under article I, section 3 and article I, section
7.
ERA; Article XXXI, Section 1 of the Washington State Constitution
The ERA states: "Equality of rights and responsibility under the law
shall not be denied or abridged on account of sex." Const. art. XXXI, sec.
1.
The plaintiffs contend that DOMA violates Washington State
Constitution's ERA. Both trial courts declined to find a violation of the
ERA, citing Singer, 11 Wn. App. 247, as precedent. In Singer, the Court of
Appeals reasoned that the purpose of the ERA is to overcome discriminatory
treatment of men and women on account of sex. Singer, 11 Wn. App. at 257.
The court explained that the ERA
insures that existing rights and responsibilities, or such rights and
responsibilities as may be created in the future, which previously might
have been wholly or partially denied to one sex or to the other, will be
equally available to members of either sex. The form of discrimination or
difference in legal treatment which comes within the prohibition of the ERA
necessarily is of an invidious character because it is discrimination based
upon the fortuitous circumstance of one's membership in a particular sex
per se.
Singer, 11 Wn. App. at 259. The court concluded that denial of a marriage
license to the two appellants, who were both male, was not based on their
sex but upon the fact they were both of the same sex. Singer, 11 Wn. App.
at 259.
Plaintiffs contend that DOMA discriminates against them because while
a man may marry a woman who is his choice to be his spouse, a woman, on
account of her sex, cannot marry a woman who is her choice to be her
spouse. The State responds that the ERA treats men and women the same.
The purpose of the ERA "is to end special treatment for or
discrimination against either sex." Marchioro v. Chaney, 90 Wn.2d 298,
305, 582 P.2d 487 (1978) (emphasis added); accord, e.g., Guard, 132 Wn.2d
at 664; Blair v. Wash. State Univ., 108 Wn.2d 558, 565, 740 P.2d 1379
(1987). The single inquiry under the ERA is whether "classification by
sex" is "discriminatory," or stated in the "language of the amendment, Has
equality been denied or abridged on account of sex?" Marchioro, 90 Wn.2d
at 305. "{I}f equality is restricted or denied on the basis of sex, the
classification is discriminatory." Brayman, 110 Wn.2d at 201.
Men and women are treated identically under DOMA; neither may marry a
person of the same sex. DOMA therefore does not make any "classification
by sex," and it does not discriminate on account of sex. Singer, 11 Wn.
App. at 259; see Baker, 170 Vt. at 215 n.13; Dean, 653 A.2d at 363 n.2
(Steadman, J., concurring) (concluding it "stretch{es} the concept of
gender discrimination to assert that it applies to treatment of same-sex
couples differently from opposite-sex couples").
The ERA is clear that the prohibited discrimination/favoritism must be
according to classifications based on sex. But even if the ERA were not
clear, there is specific legislative history relating to HJR No. 61, which
became the ERA when passed by the voters, regarding whether the legislature
intended that the amendment permit same-sex marriage. In a colloquy on the
Senate floor, Senator Pete Francis, the principal Senate sponsor of the
measure, was asked whether under the ERA same-sex couples could marry.
Senate Journal, 42nd Leg., 2nd Ex. Sess., at 347 (Wash. 1972). Senator
Francis replied, "I do not see that this would get at that at all." Id.
In response to another question, Senator Francis said that the ERA was
concerned with sex discrimination, "not to a person's sexual activities or
orientation or interests." Id. This history indicates that the
legislature did not intend that the ERA would require granting same-sex
couples the right to marry. Moreover, following the legislature's approval
of HJR 61, the Washington State Legislative Council prepared a report
studying the impact of the ERA on state laws. The report listed hundreds
of statutes that would or could violate the ERA but did not identify
statutory recognition of marriage as between a man and a woman as violative
of the ERA. Wash. State Leg. Council, The Potential Impact of House Joint
Resolution No. 61 -- the Equal Rights Amendment -- on the Laws of the State
of Washington (Oct. 16, 1972).
There is also history regarding the voters' passage of the ERA. We
have previously considered statements in favor of ballot measures in
determining the effect of the measure and have specifically done so with
regard to the ERA. Marchioro, 90 Wn.2d at 305. In the State of Washington
Voters Pamphlet, General Election 52 (Nov. 7, 1972), the "Statement for"
HJR 61 states that "the Basic Principle of the Era . . . is that both sexes
be treated equally under the law. . . . Laws which render benefits to one
sex could in most cases be retained, and extended to everyone. Laws which
restrict and deny rights to one sex would be eliminated." Thus, the ERA
was described as preventing favoritism of or discrimination against sex-
based classes. DOMA does not draw any classifications based on sex. It
does not render benefits to just one sex, nor does it restrict or deny
rights of one sex.19
Plaintiffs maintain, however, that Loving supports their argument that
DOMA violates the ERA. Plaintiffs reason that in Loving the Court held
Virginia's antimiscegenation statute invalid even though the law treated
the races equally. A black person could not marry a white person, and a
white person could not marry a black person. Plaintiffs say that the Court
nonetheless held that the statute impermissibly based the right to marry on
distinctions drawn according to race. Plaintiffs reasons that just as
Loving directs that race is always an impermissible ground for denying
marriage, so is sex.
Loving is not analogous. In Loving the Court determined that the
purpose of the antimiscegenation statute was racial discrimination, "and
the fact of equal application does not immunize the statute from the very
heavy burden of justification which the Fourteenth Amendment has
traditionally required of state statutes drawn according to race." Loving,
388 U.S. at 9. The Court also said that the Lovings fundamental freedom of
choice to marry may "not be restricted by invidious racial
discriminations." Loving, 388 U.S. at 12. If plaintiffs' case were truly
analogous to Loving, we would first have to find that DOMA discriminates on
the basis of sex and then conclude that the right to marriage is violated
because of the restriction due to sex discrimination. However, as the
State urges, DOMA treats men and women the same.
Other courts have also rejected the argument that Loving is analogous.
E.g., Baker, 291 Minn. at 314 (Virginia's antimiscegenation statute was
invalidated on the grounds of patent racial discrimination); Hernandez,
2006 N.Y. slip op. 5239, at *17-18 (Loving addressed a racially
discriminatory statute; in contrast, with regard to the plaintiffs'
challenge to the law limiting marriage to opposite-sex couples:
"{p}laintiffs do not argue here that the legislation they challenge is
designed to subordinate either men to women or women to men as a class");
Baker, 170 Vt. at 215 n.13.
The plaintiffs also contend, however, that DOMA is embedded in sexism
just as much as miscegenation laws were based on racism. Plaintiffs urge
that keeping marriage as an exclusively heterosexual institution is based
on gender-role stereotypes and exclusion of those who do not conform to
them. This argument is unpersuasive. First, there is nothing in DOMA that
speaks to gender stereotyping within marriage. Such stereotyping as exists
does so apart from DOMA. Second, plaintiffs fail to show that gay and
lesbian persons are excluded from marriage on account of or in order to
perpetuate gender stereotyping. See Baker, 170 Vt. at 880 n.13 (noting
that it is one thing to show that repealed marriage statutes subordinated
women to men within the marital relationship, but quite another to show
that same-sex couples are excluded from marriage laws because of incorrect
and discriminatory assumptions about gender roles).
Plaintiffs have not established sex-based discrimination in violation
of the ERA.
CONCLUSION
The question we resolve today is whether the legislature may limit the
definition of marriage to include only heterosexual unions. The case law
that controls our inquiry compels our conclusions.
The issue of same-sex marriage has been the subject of intense debate
throughout the nation. Although times are changing, the plaintiffs have
not established that as of today sexual orientation is a suspect
classification or that a person has a fundamental right to a same-sex
marriage. Thus, the State is required to demonstrate only a rational basis
to justify the legislation. Under this highly deferential standard, any
conceivable state of facts providing a rational basis for the
classification may be considered. The legislature was entitled to believe
that limiting marriage to opposite-sex couples furthers the State's
legitimate interests in procreation and the well-being of children.
The cases on which the plaintiffs primarily rely, involving race and
privacy, do not support the result they urge. As discussed above, Loving
involved Virginia criminal laws which prohibited and punished interracial
marriage and Lawrence involved a Texas criminal sodomy law. In both cases,
the United States Supreme Court found the laws unconstitutional because
there was no justification for the racial distinctions or the intrusion
into private sexual behavior. In contrast, in this case the State has
established that DOMA was enacted to codify the common law, to promote
procreation, and to encourage stable families.
All parties agree that the legislature has the authority to define
marriage within constitutional limits. However, we note that the record is
replete with examples as to how the definition of marriage negatively
impacts gay and lesbian couples and their children. 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
such as those surrounding medical conditions (e.g., the right to be present
in the hospital and to help make difficult decisions), probate (e.g., the
right to inherit property), and health insurance (e.g., the ability to
obtain coverage for a spouse through employment policies). Many local
governments and businesses have recognized the difficulties facing same-sex
couples and, nationally, many leading companies provide for equivalent work
benefit packages for gay and lesbian employees. As discussed above,
however, 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, Murgia, 427 U.S. at 317, 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.
Applying the current case law that governs our decision and the narrow
issues on which the plaintiffs requested we rule, we hold that the
plaintiffs have not established that the Washington State Defense of
Marriage Act is unconstitutional under the state privileges and immunities
clause, article I, section 12, the state due process clause, article I,
section 3, the state constitution's privacy provision, article I, section
7, or the state's Equal Rights Amendment, article XXXI, section 1. We
reverse the decision of the King County Superior Court in Andersen and the
decision of the Thurston County Superior Court in Castle.
AUTHOR:
Justice Barbara A. Madsen
WE CONCUR:
Chief Justice Gerry L. Alexander
Justice Charles W. Johnson
1 Faced with a similar dissent in Hernandez v. Robles, 2006 N.Y. slip op.
5239, 2006 N.Y. LEXIS 1836 (Ct. App. July 6, 2006), the lead opinion
stated: 'The dissenters assert confidentially that 'future generations'
will agree with their view of this case. {2006 N.Y. slip op. 5239 (dissent
at *90).} We do not predict what people will think generations from now,
but we believe the present generation should have a chance to decide the
issue through its elected representatives.' Id. at *22. (The New York
Court of Appeals determined that New York's restriction of marriage to same-
sex couples does not violate the New York State Constitution.)
2 Justice Fairhurst's dissent attempts to shift the focus from whether
limiting marriage to opposite-sex couples furthers these interests to
whether excluding same-sex couples furthers these interests. By doing so
the dissent fails to give the legislature the deference required under the
constitution.
3 As will be explained, the court in Andersen erroneously relied on federal
constitutional cases involving race and the right to privacy to conclude
that the state constitution guarantees a right to same-sex marriage. In
the Castle case, the court erred in finding that same-sex orientation forms
the basis for a suspect class of persons. There is nothing in this state's
constitution or case law to support this conclusion. It is this court's
duty to review the opinions of the lower courts. The fact that some lower
court decisions are reversed is not a negative reflection on the diligence,
integrity, or scholarship of the judges involved. The trial judge in each
of these cases is a well-respected jurist, and Justice J.M. Johnson's
suggestion that the judges' decisions were result-oriented is unwarranted.
4 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
5 The Thurston County Superior Court agreed but did so by applying an
independent state constitutional analysis to determine that the class is
inherently suspect. As we have explained, an independent state analysis is
not appropriate in this case.
6 We 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.
7 E.g., Engrossed Substitute H.B. 2661, 59th Leg., Reg. Sess. (Wash. 2006);
RCW 9A.36.080; RCW 9A.36.078; RCW 10.95.120(6)(e)-(f); Bothell Mun. Code
8.60.020(G); Bremerton Mun. Code 22.01.260; Everett Mun. Code 2.104.260;
Kenmore Mun. Code 9.40.010(H); Kirkland Mun. Code 3.80.020(b); King County
Code (KCC) 6.27A.120; KCC 12.16.020; chapter 12.19 KCC; San Juan County
Mun. Code 12.08.190; Seattle Municipal Code (SMC) 14.08.020(M), .045, .060,
.070, .080; SMC 3.14.931; Yelm Mun. Code 9.08.080.
8 It is noteworthy that, as amended, the Hawai'i constitution does not
foreclose the legislature from amending state marriage laws to extend the
right to marry to same-sex couples.
9 In Lawrence, 539 U.S. 558, involving the Texas sodomy statute, the Court
addressed the validity of the statute by deciding whether the petitioners
had a liberty interest under the due process clause of the Fourteenth
Amendment. The Court looked to laws and traditions in the past half
century showing an emerging awareness of protection to be afforded adults
in decision making about their private lives and sex. Lawrence, 539 U.S.
at 571-72. The Court explained that 'early American sodomy laws were not
directed at homosexuals as such but instead sought to prohibit
nonprocreative sexual activity more generally.' Lawrence, 539 U.S. at 568.
Not until the 1970s did any state specifically prohibit same-sex relations
for criminal prosecution, and only nine states did so. Lawrence, 539 U.S.
at 570. The Court observed that at the time of its decision only 13 states
still prohibited sodomy, 4 of these only in the case of homosexual conduct,
and noted a pattern of nonenforcement of most of these laws with respect to
consenting adults acting in private. Lawrence, 539 U.S. at 573. Although
Lawrence addressed the place of history and tradition in deciding the
nature and extent of the due process liberty interest it recognized, the
case was decided under a rational basis scrutiny standard of review.
10 Justice J.M. Johnson resorts to name-calling in an effort to refute this
point. However, it is difficult to explain the United States Supreme
Court's decisions in Loving and Lawrence other than that the Supreme Court
has recognized that the concept of fundamental rights is not static, locked
in at the time of the founders.
11 In 1970, an amendment to RCW 26.04.010 eliminated the terms 'male' and
'female' and substituted 'persons.' Laws of 1970, 1st Ex. Sess., ch. 17,
sec. 2. However, the amendment was not intended to alter marriage as
between a man and a woman. Instead, the statute was amended to provide the
age of consent for both parties to a marriage to be 18 years, rather than
21 years for a male and 18 years for a female as before. Because the same
age now applied to both, there was no longer any need to use the terms
'male' and 'female.' In 1972, the ERA was adopted, and gender designations
were subsequently eliminated from chapter 26.04 RCW. Again, the change did
not involve recognition of same-sex marriage, as we explain below in our
discussion of whether DOMA violates the ERA. In 1976, the Court of Appeals
held in Singer, 11 Wn. App. 247, that state statutes defined opposite-sex
marriage and were constitutional. Then, in 1998, DOMA was enacted
expressly prohibiting same-sex marriage.
12 Contrary to the view expressed in Justice Fairhurst's dissent, the right
to marry is not grounded in the State's interest in promoting loving,
committed relationships. While desirable, nowhere in any marriage statute
of this state has the legislature expressed this goal.
13 In a rare case where the rational basis standard was found not to have
been satisfied, legislative materials affirmatively showed that the
challenged legislation could not rationally be thought to have furthered
the identified legislative interests. DeYoung, 136 Wn.2d at 148-50.
14 See 2 House Journal, 55th Leg., Reg. Sess., at 343-44 (Wash. 2006);
Senate Journal, 55th Leg., Reg. Sess., at 229-30 (Wash. 2006); (search
hyperlinks under 'View roll calls' (last visited July 12, 2006)).
15 Justice Fairhurst's dissent also fails to consider that traditional and
generational attitudes toward marriage may have contributed to the vote by
any individual legislator as well as the possibility that legislators who
were favorably disposed toward same-sex marriage were nevertheless
concerned with developments in other states, including the amendments to
state constitutions.
16 The Court explained that '{i}f special accommodations for the disabled
are to be required, they have to come from positive law.' Garrett, 531
U.S. at 368.
17 Many employers have recognized the need to provide their gay and lesbian
employees with equivalent benefits policies. See Howard Paster, The
Federal Marriage Amendment is Bad for Business, Wall St. J., Oct. 5, 2004,
at B2 ('American businesses have been changing their workplace policies,
adding domestic partner benefits and rethinking their corporate cultures
since the early 1980s.' Forty percent of the Fortune 500 companies,
including 'oil giants Shell Oil and BP, the Big Three auto makers, Lockheed
Martin, General Electric, and Coca Cola', provide equivalent benefits
because '{b}ottom-line, business decision-making explains it: Respected
employees perform better and stay longer.')
18 The Andersen plaintiffs reason that no Gunwall analysis is necessary
because there is no dispositive federal law. Whether a Gunwall analysis is
required does not depend on whether there is dispositive federal law.
19 While opponents of the measure said in their 'Statement against' HJR 61
in the Voters Pamphlet at 53 that homosexual and lesbian marriage would be
legalized, the Attorney General's statement of the 'Effect of HJR No. 61 if
approved into Law' includes no such information. And, in any event, a
statement in opposition to a ballot measure does not carry weight in
construing an enacted measure. Lynch v. Dep't of Labor & Indus., 19 Wn.2d
802, 811-13, 145 P.2d 265 (1944).
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