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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 James Johnson
Concurring: Richard B. Sanders
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/759341CO2.pdf
No. 75934-1
J.M. JOHNSON, J. (separate opinion concurring in judgment only) -- This is
a difficult case only if a court disregards the text and history of the
state and federal constitutions and laws in order to write new laws for our
State's citizens. Courts are not granted such powers under our
constitutional system. Our oath requires us to uphold the constitution and
laws, not rewrite them.
Marriage is the union of one man and one woman, and every Washington
citizen has a constitutional right to enter into such a marriage, 1 subject
only to limited regulation under the police power (for example, restricting
underage or close family marriage). This understanding of marriage has
been continuously recognized throughout the history of the United States
and of the state of Washington, including Washington territorial law. The
unique and binary biological nature of marriage and its exclusive link with
procreation and responsible child rearing has defined the institution at
common law and in statutory codes and express constitutional provisions of
many states.2
When the institution of marriage was first challenged in the United States
Supreme Court through claims to religiously endorsed polygamy, this
historical definition of marriage as the union of one man and one woman was
confirmed. The same understanding has been confirmed in every subsequent
case in that court when marriage has been considered in many other
contexts.
The appellate judges and justices in the highest courts of all the states,
and justices of the United States Supreme Court, take an oath to uphold the
constitution and laws. The issue presented today has been before many of
these courts. The understanding of marriage expressed above and elaborated
below has been continuously upheld, 3 with only one notorious exception.4
A correct understanding of constitutional principles should not be
determined by a numerical count of judges, but the fact our conclusion has
been shared by all these appellate judges and justices adds to our
certainty in the judgment today.
Here, two trial courts held that Washington's historic definition of
marriage and the 1998 Defense of Marriage Act (DOMA) are unconstitutional
and that Washington must recognize as "marriage" relationships violating
that definition. King County, the State of Washington, and Intervenors
Senator Val Stevens, et al., appealed. The respondents are gay and lesbian
plaintiffs in each trial court whose numerous constitutional arguments
challenged Washington marriage law. The two trial judges agreed that
Washington's marriage law was unconstitutional but on different grounds.
Trial courts may reflect the dominant political ideas of their local
community. We have two such decisions before us, and many other state
supreme courts have had to correct similar trial court rulings. Both
opinions below were transparently result-oriented; the two courts agreed
that it was time for marriage in Washington to be redefined but could not
agree on a constitutional analysis to support such result. This decision
is based on the constitution and laws.
Our opinion goes beyond Justice Madsen's opinion in analyzing and rejecting
all constitutional claims to achieve finality. We also apply a different
article I, section 12 analysis, which we believe is better supported by
precedent. Based on all applicable authority in this court and from the
United States Supreme Court, we concur in a judgment reversing both trial
courts, upholding Washington marriage law, and dismissing all challenges.
I. Marriage under the Constitution And Procedures Below
For more than 125 years our state laws and our constitution and its
amendments have been predicated on the same definition of marriage: the
union of one man and one woman. For example, the territorial Code of
Washington provides: "Marriage is a civil contract which may be entered
into by males of the age of twenty-one years, and females of the age of
eighteen years, who are otherwise capable." Code of 1881, sec. 2380
(emphasis added). A similar definition of marriage underlies the United
States Constitution and federal laws.
In 1996, several state court decisions threatened to disrupt this
understanding. In one response, Congress enacted and President Clinton
signed the federal Defense of Marriage Act,5 which explicitly provides that
for purposes of all federal laws, marriage means only a legal union between
a man and a woman as husband and wife. The act also reaffirmed that states
are not required to recognize same-sex marriages from other states.
In 1998, our state's legislature adopted Washington's DOMA,6 which simply
reaffirms this long-standing view of marriage. To declare the latter
statute unconstitutional would declare marriage as Washington citizens have
always known it, unconstitutional. It is worthy of note that the courts
below could not or did not, fashion a remedy for their extraordinary
pronouncements nor even consider the far reaching effects on Washington's
family law.
In Andersen v. King County, No. 04-2-04964-4, 2004 WL 1738447 (King County
Super. Ct. Aug. 12, 2004), 16 individuals 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. They claimed that the prohibition against same-sex
marriage violates the state constitution. The court allowed intervention
by two state legislators and other individuals and organizations seeking to
defend Washington's marriage law.
The trial court granted summary judgment in favor of plaintiffs. The King
County court held DOMA unconstitutional, under the privileges and
immunities and due process clauses of the state constitution, on the basis
that Washington marriage law denies the plaintiffs a fundamental right to
marry. The trial court did not include an order directing any remedy. The
State, county, and intervenors petitioned for direct review, which this
court granted.
In Castle v. State, No. 04-2-00614-4 (Thurston County Super. Ct. Sept. 7,
2004), plaintiffs are 22 gay and lesbian individuals who want to marry a
person of the same sex or who claim they were married in other states.7 A
suit against the State was brought in Thurston County Superior Court
seeking a declaratory judgment under the state constitution's privileges
and immunities and due process clauses, and the Equal Rights Amendment.
That court denied intervention of legislators and supporters of traditional
marriage. The Thurston County Superior Court determined under state
constitutional analysis that plaintiffs constitute a suspect class, that
plaintiffs' fundamental right to same-sex marriage is violated, and that
Washington marriage law violates the privileges and immunities clause. The
court granted the plaintiffs' motion for summary judgment but stayed the
decision before considering any specific remedy. The State sought direct
review, which was granted. The two cases were consolidated.
At its core, the claims involve not only the purported right to a
"marriage" with a person of the same sex but also a claim of raw judicial
power to redefine public institutions such as marriage. The lower courts,
and the dissenters, cannot create a new fundamental right to same-sex
"marriage" without assuming in the courts the power to redefine marriage
and presumably any other right of our citizens under the United States and
Washington Constitutions.
This court does not possess that power -- no court does. Separation of
powers is a fundamental constitutional principle. The necessary corollary
is the obligation to recognize only the legitimate power of each branch of
government.
The weighty record of history, overwhelming societal consensus, and the
strong force of legal authorities from Washington courts and its
legislature, as well as from the United States Supreme Court, do not allow
such a cavalier and arbitrary redefinition of marriage by a court. Though
advanced with fervor and supported by special interests loudly advocating
the latest political correctness, the arguments (and the dissenters) cannot
overcome the plain legal and constitutional principles supporting
Washington's definition of marriage.
II. There is No Violation of the Privileges and Immunities Clause
Respondents first claim a right or privilege to marry a person of the same
sex under the constitution of Washington. This claim categorically fails
an honest independent analysis of article I, section 12 of our state
constitution.
The Washington Constitution privileges and immunities clause provides:
No law shall be passed granting to any citizen, class of citizens, or
corporation other than municipal, privileges or immunities which upon the
same terms shall not equally belong to all citizens, or corporations.
Wash. Const. art. I, sec. 12. "Appropriate constitutional analysis begins
with the text and, for most purposes, should end there as well." Malyon v.
Pierce County, 131 Wn.2d 779, 799, 935 P.2d 1272 (1997). This text
requires a two-part analysis: (1) Does a law grant a citizen, class, or
corporation "privileges or immunities," and if so, (2) Are those
"privileges or immunities" equally available to all? Of course if no
"privilege or immunity" is granted by the challenged law in the first
place, the clause has no application and the second question is never
reached.
First, note that DOMA does not "grant" any right at all; the right to
marriage between a man and a woman long predates DOMA.8 Secondly, relevant
to this analysis, there is no right or "privilege" to same-sex marriage.
The threshold question, therefore, is what entitlement under Washington
marriage law is a "privilege or immunity" and whether respondents' claim
qualifies. Fortunately, there is a rich and long history for the terms of
art "privilege" and/or "immunity," as well as ample precedent, which gives
these terms form and substance. Marriage between a man and a woman is a
right or privilege, these same-sex claims are not, and history and all case
law confirm this.
The term "privileges and immunities" first found its way into American law
in the Articles of Confederation of the United States of America, adopted
in 1778. Article IV of the articles provided:
The better to secure and perpetuate mutual friendship and intercourse among
the people of the different States in this Union, the free inhabitants of
each of these States, paupers, vagabonds and fugitives from justice
excepted, shall be entitled to all privileges and immunities of free
citizens in the several States . . . .
These terms were firmly ensconced in English law. See, e.g.,
2 Blackstone's Commentaries *129 editor's cmt. 5 (St. George Tucker ed.,
Rothman Reprints, Inc. 1969) (1803).
The Articles of Confederation were replaced by the United States
Constitution, which provides in part: "The citizens of each state shall be
entitled to all privileges and immunities of citizens in the several
states." U.S. Const. art. IV, sec. 2.9 Alexander Hamilton even discussed
the clauses in The Federalist No. 80, at 405 (Alexander Hamilton).
Justice Bushrod Washington in Corfield v. Coryell, 6 F. Cas. 546, 551-52, 4
Wash. C. C. 371 (C.C.E.D. Pa. 1823) provided the classic statement of the
law on privileges and immunities under article IV of the United States
Constitution:
The inquiry is, what are the privileges and immunities of citizens in the
several states? We feel no hesitation in confining these expressions to
those privileges and immunities which are, in their nature, fundamental;
which belong, of right, to the citizens of all free governments; and which
have, at all times, been enjoyed by the citizens of the several states
which compose this Union, from the time of their becoming free,
independent, and sovereign. What these fundamental principles are, it
would perhaps be more tedious than difficult to enumerate. They may,
however, be all comprehended under the following general heads: Protection
by the government; the enjoyment of life and liberty, with the right to
acquire and possess property of every kind, and to pursue and obtain
happiness and safety; subject nevertheless to such restraints as the
government may justly prescribe for the general good of the whole. The
right of the citizen of one state to pass through, or to reside in any
other state, for purposes of trade, agriculture, professional pursuits, or
otherwise; to claim the benefit of the writ of habeas corpus; to institute
and maintain actions of any kind in the courts of the state; to take, hold,
and dispose of property, either real or personal; and an exemption from
higher taxes or impositions than are paid by the other citizens of the
state; may be mentioned as some of the particular privileges and immunities
of citizens, which are clearly embraced by the general description of
privileges deemed to be fundamental: to which may be added, the elective
franchise, as regulated and established by the laws or constitution of the
state in which it is to be exercised. These, and many others which might
be mentioned, are, strictly speaking, privileges and immunities . . . .{10}
From early in our nation's history, many individual state constitutions
also included privileges and immunities clauses, although the text of these
clauses often differs slightly. W. J. Meyers, The Privileges and
Immunities of Citizens in the Several States, 1 Michigan Law Review 286
(1902) catalogues many state court decisions construing state privileges
and immunities clauses in terms of what was, and was not, considered to be
a privilege or immunity. Professor Meyers concludes, "Roughly, the
'privileges and immunities' belonging to a citizen by virtue of citizenship
are 'personal' rights, that is, private rights, as distinguished from
public rights." Id. at 290.
We have stated on numerous occasions that "{s}tate cases and statutes from
the time of the constitution's ratification, rather than recent case law,
are more persuasive in determining" the protections of a constitutional
provision. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 120, 937 P.2d
154, 943 P.2d 1358 (1997). An important early decision of the Washington
Supreme Court, construing our own privileges and immunities clause, was
neither cited by the dissenters nor by Justice Madsen. This decision,
State v. Vance, 29 Wash. 435, 70 P. 34 (1902), was specifically relied upon
and quoted at length in our most recent decision on the issue. Grant
County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 83 P.3d
419 (2004) (Grant County II). Indeed, Vance served as the primary
precedential basis for the holding in that case.
In both Vance and Grant County II, the court addressed the seminal question
of whether the entitlement or right at issue was a "privilege or immunity"
as those terms are used in the state constitution, expressly rejecting the
idea that any disparity in treatment necessarily falls within the clause.
Grant County II, 150 Wn.2d at 812-14 (concluding that the statutory
authorization allowing landowners to petition for municipal annexation does
not involve a fundamental attribute of an individual's state citizenship).
Thus, there is no privilege, i.e., fundamental right of state citizenship,
at issue in this case, and the claim of a violation of article I, section
12 fails for this reason.
Grant County II, 150 Wn.2d at 814.
These cases require us to similarly focus first upon what is a "privilege
or immunity." If there is no constitutional privilege or immunity at
issue, the case is decided.
As stated in Vance and repeated in Grant County II, the most apt analogy
from the United States Constitution is its privilege and immunities clause,
not the equal protection clause. Applying the "equal protection" analysis
to a privilege and immunity claim, as reflected in some other opinions,
amounts to rewriting constitutional text.11 (For this claim, equal
protection analysis is separately applied, infra, p. 15.)
To apply the constitutional text to the case at bar is not difficult. The
privileges and immunities challenge brought against DOMA is that the act
confers the "privilege" of marriage to opposite-sex couples while
withholding it to same-sex couples. The apparent defect in this argument,
however, is that same-sex marriage cannot be argued to be a "privilege" in
the sense that term is used in our state constitution to encompass
fundamental rights which belong to the citizens of the state.
The same result is reached if we apply the same words as they have been
understood in the federal constitution. See discussion in Vance, 29 Wash.
at 458. There is no fundamental right to same-sex marriage under the
United States Constitution as the United States Supreme Court cases
discussed infra, p. 20, further establish.
Many cases in this court, and the United States Supreme Court, do support
the conclusion that marriage between one man and one woman is a right or
privilege. However, there is no basis whatsoever to conclude that same-sex
"marriage" is historically fundamental in the sense that it does "belong,
of right, to the citizens of all free governments; and which have, at all
times, been enjoyed by the citizens of the several states which compose the
Union, from the time of their becoming free, independent, and sovereign."
Corfield, 6 F. Cas. at 551. Even Justice Fairhurst's dissent concludes
there is not a shred of historical precedent to satisfy that proposition,
concluding rather that the history is precisely the opposite, that of
hostility (and that DOMA is "motivated solely by animus"). Dissent
(Fairhurst, J.) at 18.
Nor is Justice Madsen's claim that "history and tradition are not static,"
Madsen, J., op. at 26 coherent, at least outside the context of a George
Orwell novel. Our history and tradition are real and ascertainable. This
court and the United States Supreme Court have always applied these
principles to inform the understanding of the privileges and immunities
clause, rather than current political notions. Under our constitutional
separation of powers, such issues are for the legislature and/or the
people, and here the legislature has clearly spoken.12 This is not to
suggest the constitutional right of marriage may be redefined at will by
legislative process; that may be a case for a different day.
III. Fourteenth Amendment Equal Protection Analysis
The superior court in Andersen purported to rely on cases that apply the
United States Constitution's Fourteenth Amendment guarantee of equal
protection. Washington marriage law and DOMA easily satisfy this test as
well. The level of scrutiny applied depends upon whether the law is drawn
using a suspect class or whether a fundamental right is implicated. Where
a law involves no such classification and no fundamental right is
implicated, rational basis review is applied. Otherwise, strict scrutiny
is applied. DOMA satisfies either test as demonstrated, infra.
A. Suspect Class
Where a law is challenged because of a legislative classification of
persons, suspect class analysis may be applied. At the outset, it is not
true that DOMA defines any such class, which is allowed -- or not allowed -
- to marry. Professed homosexuals, like all Washingtonians, are clearly
allowed to marry in Washington. See, e.g., In re Parentage of L.B., 121
Wn. App. 460, 464, 89 P.3d 271 (2004), aff'd in part, rev'd in part on
other grounds, 155 Wn.2d 679, 122 P.3d 161 (2005).
Every Washingtonian may marry subject to reasonable police power
restrictions. A person may not marry someone under age 17 (RCW 26.04.010),
may not marry if already married (RCW 26.04.020(1)(a)), may not marry a
close relative (RCW 26.04.020(1)(b)), and may not marry if "the parties are
persons other than a male and a female" (RCW 26.04.020(1)(c)).
The last prohibition, like the bigamy/polygamy prohibition, is
definitional. A "marriage" means a marriage between one man and one woman
(and the only marriage of each spouse). There is no class favored or
disfavored under this statute, thus there can be no "suspect class."
Assuming arguendo the last provision (RCW 26.04.020(1)(c)) could be viewed
as excluding a group, the group must also qualify as a "suspect" class in
order to require heightened scrutiny, and claimants do not qualify.
"Suspect class" has been limited to "race, alienage, or national origin"
because those "factors are so seldom relevant to the achievement of any
legitimate state interest that laws grounded in such considerations are
deemed to reflect prejudice and antipathy." City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985).
Suspect classes that have been recognized have a history of discrimination
and exhibit an obvious, immutable trait frequently bearing no relation to
the ability to relate to society, and constitute a politically powerless
class. Id. at 400; High Tech Gays v. Def. Indus. Sec. Clearance Office,
895 F.2d 563, 573 (9th Cir. 1990).
Conversely, where the distinguishing characteristics of the group impacted
by a law are "relevant to interests the State has the authority to
implement, the courts have been very reluctant . . . to closely scrutinize
legislative choices as to whether, how, and to what extent those interests
should be pursued." Cleburne, 473 U.S. at 441-42. See Thomasson v. Perry,
80 F.3d 915, 928 (4th Cir. 1996) ("{T}he Supreme Court has made clear that
'respect for the separation of powers' should make courts reluctant to
establish new suspect classes." (quoting Cleburne, 473 U.S. at 441)).
Washington follows federal law when determining a suspect class. Seeley v.
State, 132 Wn.2d 776, 791, 940 P.2d 604 (1997); State v. Shawn P., 122
Wn.2d 553, 559-60, 859 P.2d 1220 (1993).
DOMA does not create an inherently suspect legislative class nor is DOMA
drawn along the lines of any suspect class. DOMA does not distinguish
between persons of heterosexual orientation and homosexual orientation nor
does the prohibition on marrying a partner who is already married or who is
underage.
DOMA's terms apply to all alike as individuals. Under DOMA every adult has
the ability to marry a person of the opposite sex. The married couple in
In re Parentage of L.B. were both avowedly homosexual at one time but they
married -- one man and one woman. No inquiry was made into their sexual
orientation. It cannot be said that an individual with a homosexual
orientation is deprived of the ability to enter a state-recognized
marriage, absent an a priori redefinition of marriage.13
DOMA did not change the law of marriage in Washington. See Singer v. Hara,
11 Wn. App. 247, 262, 522 P.2d 1187 ("to define marriage to exclude
homosexual or any other same-sex relationships is not to create an
inherently suspect legislative classification requiring strict judicial
scrutiny to determine a compelling interest."), review denied, 84 Wn.2d
1008 (1974).
Assuming arguendo that DOMA did imply some classification, no Washington
appellate court has ever found sexual orientation to be a suspect
classification. See, e.g., Miguel v. Guess, 112 Wn. App. 536, 552 n.3, 51
P.3d 89 (2002); Singer, 11 Wn. App. at 262. Even the trial court in
Andersen agreed that the "substantial weight of appellate authority runs
contrary to" respondents' claim that homosexuals or homosexual orientation
constitute a suspect class. Andersen, No. 04-2-04964-4, 2004 WL 1738447,
at *5. The trial court in Andersen applied the traditional test for
suspect-class designation and held that "in view of the record herein, this
Court is not in a position to announce a potentially far-reaching new rule
that homosexuality defines a suspect class for purposes of constitutional
analysis. It will decline to do so." Id.
Looking to federal law, it is also clear that sexual orientation is not a
suspect or quasi-suspect class. No federal court has specifically found
sexual orientation to be a suspect classification.14 After examining the
decisions of the different federal judicial circuit courts of appeal, the
Eleventh Circuit recently noted that "{A}ll of our sister circuits that
have considered the question have declined to treat homosexuals as a
suspect class." Lofton v. Sec'y of Dep't of Children & Family Servs., 358
F.3d 804, 818 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005). See
also Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th
Cir. 2003) (referencing High Tech Gays for the holding that "homosexuals
are not a suspect or quasi-suspect class, but are a definable group
entitled to rational basis scrutiny for equal protection purposes.").15
Justice Madsen's opinion correctly concludes that there is no precedent to
support the plaintiff's contention that homosexuality is a suspect class.
As indicated above, it is not even a class for the purposes of the DOMA
statute.
The logic and underlying constitutional rationale of both state and federal
case authority do require the conclusion that sexual orientation is not a
suspect class for the purposes of the Washington Constitution.
B. Fundamental Right
Given the claims here, the importance of marriage, and the strong interests
in finality of our decision today, it is appropriate to also employ the
fundamental rights analysis. These rights deemed "fundamental" for equal
protection16 purposes and qualifying for heightened judicial scrutiny
include those liberties that are "objectively, 'deeply rooted in this
Nation's history and tradition.'" Washington v. Glucksberg, 521 U.S. 702,
720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) (quoting
Moore v. East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d
531 (1977) (plurality opinion)). An inquiry into the understanding of the
people further reflects the respect for the people expressed in our state
constitution's article I, section 1 declaration of rights: "All political
power is inherent in the people." See also, e.g., U.S. Const. preamble and
amend. IX; The Declaration of Independence para. 2 (July 4, 1776).
Rights expressly affirmed in our federal and state constitutions or
acknowledged through long-standing public practice rightly receive
protection. Both constitutions specifically protect rights of the people
beyond those enumerated in the text of the Bill of Rights. Wash. Const.
art. I, sec. 30; U.S. Const. amend. IX. In order to assure against erosion
of these fundamental rights, they may be amended only through procedures
set forth in each constitution.
Conversely, where courts attempt to mandate novel changes in public policy
through judicial decree, they erode the protections of our constitutions
and frustrate the constitutional balance, which expressly includes the will
of the people who must ratify constitutional amendments. Examination of
history and tradition is therefore necessary to identify fundamental rights
as the basis for judicial decision-making. This inquiry must not hinge
upon the judges' subjective feelings but must be based upon objective
consideration of historical understanding.
United States Supreme Court precedent has stressed this deeply rooted
historical nature of fundamental rights analysis. Fundamental rights are
those "'implicit in the concept of ordered liberty,'" such that "'neither
liberty nor justice would exist if they were sacrificed.'" Glucksberg, 521
U.S. at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct.
149, 82 L. Ed. 288 (1937)). Fundamental liberty interests reflect a
"strong tradition" founded on "{t}he history and culture of Western
civilization," which are "now established beyond debate as an enduring
American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct.
1526, 32 L. Ed. 2d 15 (1972).
The creation of new constitutional rights has serious ramifications and, if
created by court decree rather than pursuant to constitutional amendment
procedures, does not have the legitimacy of public debate and/or
legislative action. Glucksberg, 521 U.S. at 720. Policy preferences of
judges must not be advanced through the guise of newly created rights
grounded in fads of political correctness.
Thus, relying upon "{o}ur Nation's history, legal traditions, and
practices" as "'guideposts for responsible decisionmaking,'" the United
States Supreme Court has recognized marriage between one man and one woman
as a fundamental right.17 Glucksberg, 521 U.S. at 721.
The fundamental right of a man and woman to marry is linked with the
related fundamental right to procreate, as noted in Skinner. Id. at 541
("{m}arriage and procreation are fundamental to the very existence and
survival of the race"); Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673,
54 L. Ed. 2d 618 (1978).
Every United States Supreme Court decision concerning the right to marry
has assumed marriage as the union of one man and one woman. Every party in
every right to marry case that the Supreme Court has ever decided included
one man in union with one woman. Those decisions do not support any claim
other than the right to marry a person of the opposite sex.18
In addition to the right to marry cases, other important United States
Supreme Court cases have also relied upon the customary definition of
marriage as the union of one man and one woman. See, e.g., Murphy v.
Ramsey, 114 U.S. 15, 45, 5 S. Ct. 747, 29 L. Ed. 47 (1885) (discussing "the
basis of the idea of the family, as consisting in and springing from the
union for life of one man and one woman"); Davis v. Beason, 133 U.S. 333,
341, 10 S. Ct. 299, 33 L. Ed. 637 (1890).
The United States Supreme Court has directly rejected the argument that a
fundamental right to marry extends to same-sex unions. In Baker v. Nelson,
291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.
Ct. 37, 34 L. Ed. 2d 65 (1972), the Supreme Court dismissed for lack of a
substantial federal question an appeal of a Minnesota State Supreme Court
decision that rejected the claim made here that "the right to marry without
regard to the sex of the parties is a fundamental right of all persons."
Baker, 291 Minn. at 312-15. The Minnesota Supreme Court reversed and held
the state's marriage statute did not violate the due process clause or the
equal protection clause. The Supreme Court dismissed the appeal. Thus,
the same-sex union as a constitutional right argument was so frivolous as
to merit dismissal without further argument by the Supreme Court. A
similar result is required today. 19
In all later cases, the United States Supreme Court made clear it was not
establishing a fundamental right to recognition of homosexual relationships
-- let alone same-sex marriage. When invalidating a criminal statute
prohibiting homosexual sodomy, the court stated, "{This case} does not
involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter." Lawrence v. Texas,
539 U.S. 558, 578, 604, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).
Justice Sandra Day O'Connor further stated that "preserving the traditional
institution of marriage" is a "legitimate state interest" and "other
reasons exist to promote the institution of marriage beyond mere moral
disapproval of an excluded group." Id. at 585 (O'Connor, J., concurring). 20
Indeed, the Supreme Court disclaimed that fundamental rights analysis
extends to same-sex couples. Id. at 593 (Scalia, J., dissenting) ("{w}e
have held repeatedly, in cases the Court today does not overrule, that only
fundamental rights qualify for this so-called 'heightened scrutiny'
protection -- that is, rights which are 'deeply rooted in this Nation's
history and tradition'" (quoting Glucksberg, 521 U.S. at 721)). Other
authorities have reiterated the conclusion that Lawrence did not create or
even suggest a right to marry a person of the same sex.21
Thus, the body of credible appellate authority in this nation stands
against the asserted equal protection right to marry a person of the same
sex, and the effort to redefine marriage has been overwhelmingly rejected
by courts in other jurisdictions.22 Even the Goodridge plurality in
Massachusetts declined to create such a new fundamental right.23
The commitment to marriage as a union of one man and one woman has been
emphatically reiterated in states. In the few years these cases were
pending, 11 states considered constitutional amendments to confirm the
understanding of marriage as between one man and one woman. All 11
measures were passed by the people of their states. At least one more
state has since added a similar amendment to its constitution. (A complete
listing of state constitutional amendments and statutes is attached as
Appendix A.)
Supreme Court precedent does prohibit imposing obstacles to marriage of one
man and one woman where those restrictions are based solely upon invidious
discrimination and not related to any legitimate governmental interests.
In Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010
(1967), an antimiscegenation law barring marriage between white and other
races was based upon racial discriminatory purposes bearing no relationship
to governmental interests in fostering stable marriages of one man and one
woman.24
We vigorously reject any attempt to link the discriminatory
antimiscegenation laws in Loving with this State's DOMA. The Washington
Court of Appeals in Singer correctly noted:
The Loving and Perez courts {Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17
(1948)} did not change the basic definition of marriage as the legal union
of one man and one woman; rather, they merely held that the race of the man
or woman desiring to enter that relationship could not be considered by the
state in granting a marriage license.
11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim
that the decision in Loving somehow challenged state laws reaffirming
marriage as the union of one man and one woman.25
Careful review of the historical context of Loving further undermines the
dissents' disturbing attempt to link constitutionally void, racist laws
with a historical definition of marriage as between a man and woman.
Antimiscegenation laws were anathema to the "color-blind" constitution
articulated in Justice John Marshall Harlan's dissent in Plessy v.
Ferguson.26 Antimiscegenation laws infringed upon the union of one man and
one woman by injecting racial status as a qualification. Such laws
contradicted the fact that a man and a woman of any race have the natural
right to marry and have children. This right is protected by the United
States and Washington State Constitutions.
Racially discriminatory antimiscegenation laws also violate the right to
marriage between a man and a woman. Here, in contrast, the State's DOMA
simply confirms the common law understanding of marriage as a union of a
man and woman. It is the dissent that would abrogate the common law
understanding through judicial fiat.
Justice Fairhurst's dissent would reframe the issue as whether marriage
should be construed "broadly" or "narrowly." Dissent (Fairhurst, J.) at
23. Inclusion of same-sex couples within the definition of "marriage" by
redefining the right "broadly" has no support in case law. Indeed, the
polygamy claims were better supported since those claims were also founded
in a claim of a right to practice an established religion, which allowed
polygamy. The free exercise of religion is protected by the first
amendment to the United States Constitution. There is no similar claim for
same-sex marriage.
The fundamental right to enter into a marriage union of one man and one
woman, like other fundamental rights, needs no further ("broader")
definition. Below we shall briefly show that the legislative
recodification of this definition of marriage in DOMA is constitutionally
justified by a record establishing a rational basis, or alternatively, by
compelling state interests.
C. Rational Basis
Rational basis scrutiny is the most deferential analysis for equal
protection purposes, but rational basis scrutiny does not preclude judicial
review. See Island County v. State, 135 Wn.2d 141, 156, 955 P.2d 377
(1998) (Sanders, J., concurring). Laws solely based on animus toward a
particular group and wholly lacking a legitimate governmental purpose would
not meet the rational basis test. See, e.g., Romer v. Evans, 517 U.S. 620,
631, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).
Here, there are numerous rational bases supporting the legislature's
reaffirmation of marriage as the union of one man and one woman. The
complementary nature of the sexes and the unique procreative capacity of
one man and one woman as a reproductive unit provide one obvious and
nonarbitrary basis for recognizing such marriage. The binary character of
marriage exists first because there are two sexes.27 A society mindful of
the biologically unique nature of the marital relationship and its special
capacity for procreation has ample justification for safeguarding this
institution to promote procreation and a stable environment for raising
children. Less stable homes equate to higher welfare and other burdens on
the State.
Only opposite-sex couples are capable of intentional, unassisted
procreation, unlike same-sex couples. Unlike same-sex couples, only
opposite-sex couples may experience unintentional or unplanned procreation.
State sanctioned marriage as a union of one man and one woman encourages
couples to enter into a stable relationship prior to having children and to
remain committed to one another in the relationship for the raising of
children, planned or otherwise. 28
Although society's continuing existence depends upon children, marriage has
never been considered as solely a mechanism to increase the number of
births. Modern circumstances confirm that marriage is needed in today's
society more than ever. As amicus notes:
widespread contraceptive and abortion rights may actually make more
salient, not less, the traditional role of marriage in encouraging men and
women to make the next generation that society needs. The more legal,
cultural, and technological choice individuals have about whether or not to
have children, the more need there is for a social institution that
encourages men and women to have babies together, and creates the
conditions under which those children are likely to get the best care.
Amicus of Families Northwest at 14-15.
It was reasonable for the Washington Legislature to conclude that the
biological nature of one man and one woman as a reproductive unit provides
an objective and nonarbitrary basis for defining marriage. The State's
interests in support of marriage would be undermined if marriage were so
malleable in meaning as to include any consensual relationship claimed to
be "'exclusive and permanent.'" Dissent (Fairhurst, J.) at 29 (quoting
Goodridge, 440 Mass. at 332).
Marriage redefined to mean any "permanent"29 intimate personal relationship
between two consenting persons has no firmer basis than a similar
relationship between three or more persons, which has been long rejected.
The stakes were clear to the Supreme Court in facing the challenges to
marriage presented in the polygamy cases. As Chief Justice Morrison R.
Waite stated:
Upon {marriage} society may be said to be built, and out of its fruits
spring social relations and social obligations and duties, with which
government is necessarily required to deal. In fact, according as
monogamous or polygamous marriages are allowed, do we find the principles
on which the government of the people, to a greater or less extent, rests.
Reynolds v. United States, 98 U.S. (8 Otto) 145, 165-66, 25 L. Ed. 244
(1878). Several later United States Supreme Court decisions vigorously
rejected suggested alteration to the fundamental definition of marriage.30
The legislature enacted DOMA as a reasonable declaration of state marriage
policy and an acknowledgment of the federal DOMA's framework for the
recognition of marriage in the United States. The State's DOMA follows the
federal DOMA, passed by Congress and signed by President Clinton in 1996.31
The federal DOMA was enacted pursuant to the full faith and credit clause
of the United States Constitution and has been upheld as constitutional in
the face of challenges in federal courts. See Wilson, 354 F. Supp. 2d
1298; Kandu, 315 B.R. 123. See also Smelt, 447 F.3d 673.
The federal DOMA does two things. First, it expressly defines marriage as
the union of one man and one woman for federal purposes. Second, it gives
express federal law approval to states to define marriage and determine
what marriages they recognize pursuant to the full faith and credit clause.
States are not required to recognize "marriages" not consisting of one man
and one woman even if permitted in other states. Although the federal
statute clarifies the states' powers in defining and recognizing marriage,
the statute does not dictate what particular marriage policies states
should adopt.
The legislative history for Washington's DOMA reflects that it was
contemplated in the context of the federal DOMA. Washington's DOMA
reasonably reiterates this State's understanding of marriage in light of
constitutional federalism principles recognized in the federal DOMA.
Another rational basis requiring us to uphold DOMA is that the statute was
found as necessary to ensure that decisions about marriage remain with the
people of Washington. Legislators swear an oath to uphold and defend the
constitution and laws of the State. Consistent with that oath, the
legislators ensured that the people of Washington retain control over their
institutions rather than permit foreign state judges to become de facto
determinants of marriage policy.
The legislative history of our State's DOMA also shows consideration of the
Hawaii Supreme Court's decision in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44
(1993), superseded by constitutional amendment. Haw. Const. art. I, sec.
23 (amended 1998).
Legislators were concerned that without DOMA, such other states' court
decisions might be enforced in Washington. The Hawaii court had expressly
criticized the Washington decision in Singer.32 Our legislature rationally
concluded that explicitly reaffirming this State's understanding of
marriage would both reflect the consensus of the people and keep the issue
of marriage within the control of Washingtonians. Washington marriage
should remain a decision for citizens of this State, not any other state or
its courts.33
Legislators found the interests so strong as to require express definition
of marriage as the union of one man and one woman in order to remove any
possible legal uncertainties. Despite or because of the long-standing
understanding of marriage as between one man and one woman, our statutes
did not explicitly say marriage is the union of one man and one woman.34
Legislators concluded that DOMA would reinforce the understanding of
marriage in any potential court contest. 35 The legislative record
indicates concern that the Court of Appeals decision in Singer would be
argued as limited authority because of the court which ruled.36 The record
also shows express concern that this court would be cited authority from
other states argued to overrule the Singer holding.37
DOMA provides certainty, which is particularly important since this state
has generally followed the rule that the jurisdiction where the contract is
executed is controlling in most adjudications involving the validity of
marriage. Willey v. Willey, 22 Wash. 115, 117, 60 P. 145 (1900); In re
Estate of Wilbur, 8 Wash. 35, 37, 35 P. 407 (1894). This State does not
recognize common-law marriages, but we have recognized the validity of such
marriages between a man and a woman if contracted in other states. Peffley-
Warner v. Bowen, 113 Wn.2d 243, 249, 778 P.2d 1022 (1989); In re Estate of
Gallagher, 35 Wn.2d 512, 514-15, 213 P.2d 621 (1950). Legislators
specifically referred to this recognition of foreign-state marriages.38 A
strong conviction was expressed that this precedent should not extend to
same-sex "marriages" from other states.39
Where foreign law clearly violates our State's strong public policy, there
is an important and well-established exception to the rule for recognizing
foreign law. This exception probably requires that Washington courts would
not recognize same-sex "marriage" even in the absence of DOMA.40 Still,
enactment of DOMA was based upon a rational concern about precedent
recognizing some marriages from foreign jurisdictions which Washington did
not allow.
Hawaii voters subsequently enacted a constitutional amendment reaffirming
marriage as a union of one man and one woman, as have all other states
where voters or the legislature have been allowed to decide. See App. A.
The Massachusetts decision, however, has not yet been reversed, and
confirms that our legislature did not engage in speculative concerns by
enacting DOMA.
Similar concerns were evidenced by the United States Congress (and
President Clinton) and by other states when enacting DOMA statutes or
constitutional amendments reaffirming marriage as a union of one man and
one woman.41 The aberrant plurality opinion of the Massachusetts court and
the decisions by trial courts here confirm the validity of these concerns.
The record also establishes that Washington's marriage definition confirmed
in DOMA was rationally supported. Studies presented to the legislature
support marriage as a union of one man and one woman. The legislature was
offered evidence that children tend to thrive best in families consisting
of mothers, fathers, and their biological children.42
The current state of scientific findings was further illuminated by
intervenor's expert, Dr. Jeffrey B. Satinover. See Clerk's Papers (CP) at
531. For the purposes of scientific study, no simple dichotomy can be
drawn between opposite-sex couples and same-sex couples. Since same-sex
pairing takes place along sexual lines rather than across sexual lines, and
because of the nonfungible differences between men and women, serious
scientific inquiry should take into account three distinct communities with
"starkly unequal demographics, differential impact on children, and
different multigenerational capacity." See CP at 533.
Before redefining a social institution, the legislature should consider
ramifications flowing from all three of these couple communities and the
resulting impact on the social fabric and on children.
The first obvious and relevant fact is that female couple households are
necessarily fatherless and male couple households are necessarily
motherless. Each of these differences from the optimum mother/father
setting for stable family life may offer distinctive disadvantages.
Studies summarized in the record before one trial court demonstrated that
an absent father "is associated with quantifiable deficits in children at
every stage of the lifecycle, persisting not only in the adulthood of the
child, but even into the next generation." CP at 539.43 A similar problem
has been indicated of families without a mother, although the number of
male unions with children is far smaller. CP at 539.44
Direct comparisons between opposite-sex homes and same-sex homes further
support the former as a better environment for children. For example,
studies show an average shorter term commitment and more sexual partners
for same-sex couples.45
The United States Supreme Court has addressed the proposition that one man
and one woman are the optimal setting for raising a family.46 The
relationship between behavioral problems and the absence of fathers in the
home have been addressed by other courts. 47
The Washington Legislature could rationally reject outright or conclude
that further study is required before engaging in a dramatic alteration of
our society's social fabric with profound negative or unforeseeable
consequences.
Our constitutional system mandates separation of powers. It is for the
legislature to weigh the evidence and relative merits of social science and
statistics, taking into account the public interests. We recognize that
competing interpretations of the studies have been offered to this court.
For purposes of legitimate judicial review, it is sufficient to note that
the legislature held hearings with testimony supplemented by documentation,
including studies that support the conclusion that mother-father households
are the optimal setting for family and children.
More fundamentally, it is rational that our legislature insists upon
compelling evidence before making a sweeping alteration in marriage.48
Obviously, those who would overturn the prevailing definition of marriage
did not present compelling evidence to the legislature to support such
change.
This court must uphold the legislature's determination, which is both
rational and based on legitimate interests (and does not destroy or
redefine existing rights).
D. No Improper Motives Prompted DOMA
Justice Fairhurst's dissent also insists DOMA was enacted through improper
motives of "animus." Dissent (Fairhurst, J.) at 18. Presumably, this
conclusion extends to the United States Congress and President Clinton who
enacted and signed the federal DOMA, as well as to other state legislatures
who have enacted DOMA versions. To state this paranoid proposition is to
rebut it.
Courts must not indulge in speculation about illicit and subjective motives
of legislators. Not only is this a separation of powers constraint but it
involves the recognition that subjective motives are far more difficult to
discern than the objective public purposes in legislation. "'It is a
familiar principle of constitutional law that this Court will not strike
down an otherwise constitutional statute on the basis of an alleged illicit
legislative motive.'" City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 48, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986) (quoting United States v.
O'Brien, 391 U.S. 367, 383, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)). The
legislative record here offers overwhelming evidence that DOMA was enacted
in accord with proper public purposes, not the argued supposedly improper
motives.
It is disturbing that the dissenters would make this conclusion about the
Washington Legislature, particularly where expansive, objective evidence
supports the opposite conclusion. Legislative proponents of DOMA
extensively cited the rational bases for DOMA discussed supra, pp. 29-42.
Proponents of the bill expressly opposed discrimination against persons
with homosexual orientation and indeed such legislation to that effect was
passed while this case was pending.49 It is beyond the province of the
judiciary to take one side in a legislative dispute. It is sufficient here
to recognize the objective evidence available in the record only supports
the conclusion that DOMA was enacted pursuant to proper public purposes.50
E. Compelling State Interests Support Washington Marriage Law
DOMA's reaffirmation of marriage as the union of one man and one woman also
furthers compelling state interests. The legislature formally declared
that compelling governmental interests support DOMA.
(1) It is a compelling interest of the state of Washington to reaffirm its
historical commitment to the institution of marriage as a union between a
man and a woman as husband and wife and to protect that institution. {51}
This determination is amply supported by the record and by the historic
understanding of marriage's role in society.
If a statute did classify according to a suspect class or infringe on a
fundamental right, the statute will be subjected to strict scrutiny.
Cleburne, 473 U.S. at 440; San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 16-17, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). Under strict
scrutiny a state must prove the classification or infringement of a right
is narrowly tailored to advance a compelling governmental interest;
otherwise, the statute is invalid. Cleburne, 473 U.S. at 440; Rodriguez,
411 U.S. at 16-17.
Although we cannot find that DOMA was drawn according to a suspect class or
infringes upon a fundamental right, the trial court's holding in Andersen,
the briefing of the parties, and the importance of the case warrant further
analysis of DOMA under strict scrutiny. Washington marriage law and DOMA
must be upheld because the legislature expressly found it furthers
compelling state interests, and that determination is correct.
The Supreme Court discussed the importance of marriage in rebutting
challenges to marriage posed by polygamy. These cases prompted the Supreme
Court to identify the compelling state interests in marriage between one
man and one woman. See, e.g., Reynolds, 98 U.S. at 165-66, quoted supra,
p. 32; Murphy, 114 U.S. at 45, quoted supra, p. 32; Beason, 133 U.S. 344-
45. See also Wilbur, 8 Wash. at 37.
Marriage is a particularly public institution:
"it {civil marriage} is not so much the result of private agreement, as of
public ordination. In every enlightened government it is preeminently the
basis of civil institutions in every enlightened government, and thus an
object of the deepest public concern. In this light, marriage is more than
a contract. It is not a mere matter of pecuniary consideration. It is a
great public institution, giving character to our whole civil polity."
Maynard v. Hill, 125 U.S. 190, 213, 8 S. Ct. 723, 31 L. Ed. 2d 654 (1888)
(quoting Noel v. Ewing, 9 Ind. 37, 48 (1857)). As the bedrock institution
of society, marriage serves compelling state interests, many of which were
already discussed, supra, p. 30, in context of the legislative record
herein.
The State's compelling interest in marriage has also been reaffirmed in
recent decisions rejecting another proposed redefinition of marriage.
Monogamy is inextricably woven into the fabric of our society. It is the
bedrock upon which our culture is built. In light of these fundamental
values, the State is justified, by a compelling interest, in upholding and
enforcing its ban on plural marriage to protect the monogamous marriage
relationship.
Potter v. Murray City, 760 F.2d 1065, 1070 (10th Cir. 1985), cert. denied,
474 U.S. 849 (citations omitted). See Bronson v. Swensen, 394 F. Supp. 2d
1329 (D. Utah 2005) (holding "precedent in Potter dictates the finding that
there is a compelling state interest in the protection of monogamous
marriage."). See also State v. Green, 2004 UT 76, 99 P.3d 820. "First and
foremost, the State has a compelling interest in regulating and preserving
the institution of marriage as that institution has been defined by the
State." Id. at 836 (Durrant, J., concurring). Marriage in each of these
cases was between one man and one woman.
Other recent authorities have recognized the State's compelling interest in
marriage as the union of one man and one woman, particularly in light of
its exclusive link to procreation and child rearing.52 As one court noted,
"it seems beyond dispute that the state has a compelling interest in
encouraging and fostering procreation of the race and providing status and
stability to the environment in which children are raised. This has always
been one of society's paramount goals." Adams v. Howerton, 486 F. Supp.
1119, 1124 (C.D. Cal. 1980) (rejecting the claim that homosexual unions
should be recognized as marriages for immigration purposes), aff'd on other
grounds, 673 F.2d 1036 (9th Cir. 1982).
The legislature correctly held the State has compelling governmental
interests to promote marriage as the union of one man and one woman. Those
compelling interests include interests considered in the "rational basis"
discussion, supra, pp. 29-42, and were summarized by the legislature itself
(Laws of 1998, ch. 1, sec. 2). These compelling interests are well
identified in United States Supreme Court decisions considering marriage,
which are compelling and properly binding on this court. Washington
marriage law and DOMA pass even a strict scrutiny test.
IV. Due Process, Privacy, and Fundamental Rights (Article I, sections 3,
7, and 32)
Neither article I, section 3 nor article I, section 7 creates a right to
redefine marriage to include same-sex couples. Even the dissenters do not
disagree with this conclusion, but the claims of respondents will also be
briefly rebutted in interests of finality.
A. Article I, Section 3
Article I, section 3 provides that "{n}o person shall be deprived of life,
liberty, or property, without due process of law." There is no fundamental
"liberty" interest implicated here, much less any "deprived" interest.
Each Washingtonian enjoys the same right to marry one person of the
opposite sex. There is no right to redefine "marriage," and the State has
both legitimate and compelling interests in adopting laws defining marriage
as the union of one man and one woman. Thus, Washington marriage and DOMA
do not violate this provision.
B. Article I, Section 7
Article I, section 7 provides that "{n}o person shall be disturbed in his
private affairs, or his home invaded, without authority of law." The right
protected by that provision is the right to be free from unreasonable
intrusion into one's private affairs. See State v. Ferrier, 136 Wn.2d 103,
112, 960 P.2d 927 (1998). Disturbance of one's private affairs occurs when
the government intrudes upon those "privacy interests which citizens of
this state have held, and should be entitled to hold, safe from
governmental trespass." State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151
(1984).
There is no unreasonable government trespass in DOMA. Indeed, there is no
trespass of any kind. Same-sex couples are not prevented from having any
sort of private relationship that they choose. What respondents seek here
is official and public recognition of their same-sex relationships.
Article I, section 7 is not a device for creating such rights of public
recognition.
An article I, section 7 inquiry considers "'those privacy interests which
citizens of {Washington} have held, and should be entitled to hold, safe
from governmental trespass.'" State v. McKinney, 148 Wn.2d 20, 27, 60 P.3d
46 (2002) (alteration in original) (quoting Myrick, 102 Wn.2d at 511).
Claims for a right to same-sex "marriage" unequivocally fail both steps.
There is clearly no history of "marriage" that includes persons of the same-
sex. DOMA does not intrude upon private relationships but instead concerns
the public recognition of marriage. DOMA is constitutional under
article I, section 7.
C. Article I, Section 32
Respondent's argument based upon article I, section 32 is also
unsupportable. Article I, section 32 actually supports the State's
continued ability to define marriage as it has historically: the union of
one man and one woman.
Article I, section 32 declares that "{a} frequent recurrence to fundamental
principles is essential to the security of individual rights." The
legislative finding in DOMA confirms the intent to remain consistent with
"historical commitment to the institution of marriage as a union between a
man and a woman as husband and wife . . . ." Laws of 1998, ch. 1,
sec. 2(1).
The fundamental rights analysis, supra, pp. 20-29, also reflects the
mandate of this section of our constitution and demonstrates overwhelming
justification for the recognition of marriage as the union of one man and
one woman.53 Only a judicial rewriting of "fundamental principles" would
result in marriage finding definition in the shifting sands of political
correctness. The claim for same-sex "marriage" is not consistent with the
mandate of article I, section 32.
V. Equal Rights Amendment (Article XXXI, section 1)
Finally, respondents' argument under article XXXI, section 1 -- the "Equal
Rights Amendment" (ERA) -- also fails. That amendment did not create a
right to redefine marriage to include same-sex couples, and the legislative
history confirms that was not the intent of the voters who ratified the ERA
nor the intent of that amendment.
The nearly contemporaneous decision in Singer concluded correctly that
marriage as the union of one man and one woman did not violate the ERA.
The legislative history supports this conclusion. Particularly important
is the voters pamphlet explanation by proponents of the amendment.
Statements are required by our Washington Constitution article II, section
1(e). In the 1972 official voters pamphlet, the "Statement for" House
Joint Resolution 61 states that "the Basic Principle of the Era . . . is
that both sexes be treated equally under the law. . . . Laws which
restrict and deny rights to one sex would be eliminated." State of Wash.,
Voters Pamphlet, General Election 52 (Nov. 7, 1972).
DOMA is constitutional under the ERA because it applies to both sexes
equally. The ERA plainly prohibits legislation that favors one sex at the
expense of the other or that discriminates against one sex to the advantage
of the other. See, e.g., Marchioro v. Chaney, 90 Wn.2d 298, 305, 582 P.2d
487 (1978) ("Under the equal rights amendment, the equal protection/suspect
classification test is replaced by the single criterion: Is the
classification by sex discriminatory?"), aff'd, 442 U.S. 191, 99 S. Ct.
2243, 60 L. Ed. 2d 816 (1979); Darrin v. Gould, 85 Wn.2d 859, 877, 540 P.2d
882 (1975) ("under our ERA discrimination on account of sex is forbidden"
(emphasis added)).
Neither trial court here found a violation of the ERA, nor can we.
Washington's marriage law and DOMA neither favor nor discriminate against
men or women, and do not violate the ERA.
VI. Conclusion
Washington's long-standing definition of marriage as the union of one man
and one woman and DOMA are both constitutional. Respondents' numerous
challenges under the state and federal constitutions all fail.
We conclude that the legislature was justified in enacting DOMA to clarify
and reaffirm Washington marriage law by a compelling governmental interest
in preserving the institution of marriage, as well as the healthy families
and children it promotes. This conclusion may not be changed by mere
passage of time or currents of public favor and surely not changed by
courts.
Finally, we conclude that neither the due process or right to privacy
clauses in article I, section 3 and section 7 nor the equal rights
amendment to our state constitution creates a right to marry a person of
the same sex. Indeed, these claims are even less persuasive when viewed
correctly through the eyes and understanding of those who authored and
ratified our constitution (and the ERA amendment).
We add the important conclusion that this decision is required by the
relevant constitutional provisions, the history of our laws and precedent
in this court, and the United States Supreme Court. This decision is
final. 54 The decisions of both trial courts are reversed and these actions
dismissed.
AUTHOR:
Justice James M. Johnson
WE CONCUR:
Justice Richard B. Sanders
APPENDIX A
(* indicates states with constitutional amendments)
Alabama: Const. amend. 761 (2006)
*Alaska: Const. art. I sec., 25
Arizona: Ariz. Rev. Stat. sec. 25-101 (West Group 2000)
*Arkansas: Const. amend. 83, sec. 1
California: Cal. Fam. Code sec. 308.5 (Thomson/West 2004)
Colorado: Colo. Rev. Stat. sec. 14-2-104 (LexisNexis 2005)
Connecticut: no law or constitutional amendment restricting marriage to
one man and one woman
Delaware: Del. Code Ann. title 13, sec. 101 (Michie 1999)
Florida: Fla. Stat. sec. 741.212 (2005)
*Georgia: Const. art. I, sec. IV, para. I
*Hawaii: Const. art. I, sec. 23
Idaho: Idaho Code Ann. sec. 32-202 (Michie 2006)
Illinois: 750 Ill. Comp. Stat. Ann. 5/201 (Thomson/West 2004)
Indiana: Ind. Code Ann. sec. 31-11-1-1 (2005)
Iowa: Iowa Code Ann. sec. 595.2 (West Group 2001)
*Kansas: Const. art. XV, sec. 15
*Kentucky: Const. sec. 233a
*Louisiana: Const. art. XII, sec. 15
Maine: Me. Rev. Stat. Ann. title 19A, sec. 701 (West 1998)
Maryland: Md. Code Ann., Family Law sec. 2-201 (LexisNexis 2004)
Massachusetts: no law or constitutional amendment restricting marriage to
one man and one woman
*Michigan: Const. art. I, sec. 1.I(25) (LexisNexis 2006)
Minnesota: Minn. Stat. Ann. sec. 517.03 (Thomson/West 2006)
*Mississippi: Const. art. 14, sec. 263A
*Missouri: Const. art. I, sec. 33
*Montana: Const. art. XIII, sec. 7
*Nebraska: Const. art. I, sec. 29
*Nevada: Const. art. I, sec. 21
New Hampshire: N.H. Rev. Stat. Ann. sec. 457:1-:2 (Thomson/West 2004)
New Jersey: no law or constitutional amendment restricting marriage to one
man and one woman
New Mexico: no law or constitutional amendment restricting marriage to one
man and one woman
New York: no law or constitutional amendment restricting marriage to one
man and one woman
North Carolina: N.C. Gen. Stat. Ann. sec. 51-1.2 (LexisNexis 2005)
*North Dakota: Const. art. XI, sec. 28
*Ohio: Const. art. XV, sec. 11
*Oklahoma: Const. art. II, sec. 35
*Oregon: Const. Art. XV, sec. 5a
Pennsylvania: 23 Pa. Cons. Stat. Ann. sec. 1704 (West Group 2001)
Rhode Island: no law or constitutional amendment restricting marriage to
one man and one woman
South Carolina: S.C. Code Ann. sec. 20-1-15 (Thomson/West 2005)
South Dakota: S.D. Codified Laws sec. 25-1-1 (2004)
Tennessee: Tenn. Code Ann. sec. 36-3-113 (2005)
*Texas: Const. art. I, sec. 32
*Utah: Const. art. I, sec. 29
Vermont: Vt. Stat. Ann. title 15, sec. 8 (LexisNexis 2002)
Virginia: Va. Code Ann. sec. 20-45.2 (LexisNexis 2004)
Washington: RCW 26.04.010
West Virginia: W. Va. Code 48-2-104 (LexisNexis 2004)
Wisconsin: no law or constitutional amendment restricting marriage to one
man and one woman
Wyoming: Wyo. Stat. Ann. sec. 20-1-101 (LexisNexis 2005)
States with constitutional amendments pending for election in 2006:
Idaho
South Carolina
South Dakota
Tennessee
Virginia
Wisconsin
APPENDIX B
Arizona: Standhardt v. Superior Court of Ariz., 206 Ariz. 276, 77 P.3d 451
(Ct. App. 2003), review denied, 2004 Ariz. LEXIS 62 (2004)
Arkansas: Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979)
California: Lockyer v. City and County of S.F., 33 Cal. 4th 1055, 19 Cal.
Rptr. 225, 95 P.3d 459 (2004)
Florida: Kantaras v. Kantaras, 884 So. 2d 155 (Fla. Dist. Ct. App. 2004),
review denied, 898 So. 2d 80 (2005)
Illinois: In re Marriage of Simmons, 355 Ill. App. 3d 942, 292 Ill. Dec.
47, 825 N.E.2d 303 (2005)
Indiana: Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005)
Kentucky: Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973)
Minnesota: Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971)
New Jersey: Lewis v. Harris, 378 N.J. Super. 168, 875 A.2d 259 (App. Div.
2005)
New York: Hernandez v. Robles, 2006 N.Y. slip. op. 5239, 2006 N.Y. LEXIS
1836 (Ct. App. July 6, 2006)
Ohio: Irwin v. Lupardus, No. 41379, 1980 Ohio App. LEXIS 12106 (June 26,
1980) (unpublished)
Oregon: Li v. State, 338 Or. 376, 110 P.3d 91 (2005)
Pennsylvania: De Santo v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952
(1984)
Texas: Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999)
Vermont: Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999)
But see
Hawaii: Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, reconsideration granted
in part, 74 Haw. 645, 875 P.2d 225 (1993), superseded by constitutional
amendment. Haw. Const. art. I, sec. 23 (amended 1998)
Massachusetts: Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798
N.E.2d 941 (2003); c.f. Cote-Whitacre v. Dep't of Pub. Health, 446 Mass.
350, 844 N.E.2d 623 (2006)
1 As the recent case of In re Parentage of L.B., 121 Wn. App. 460, 464, 89
P.3d 271 (2004), aff'd in part, rev'd in part on other grounds, 155 Wn.2d
679, 122 P.3d 161 (2005), illustrates, this right is not restricted to
(self-identified) heterosexual couples, both father and mother were
identified as 'gay.'
2 See App. A - other states' laws and/or constitutional provisions.
3 See App. B - lists cases from other states' supreme courts understanding
marriage as a union between one man and one woman.
4 The remaining exception: the ruling of the Massachusetts Supreme Judicial
Court. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941
(2003) (constitutional amendment pending). A similar decision of the
Hawaii Supreme Court was quickly superseded by constitutional amendment.
See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 56 (1993) (discussed, infra,
p. 34).
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. sec. 7;
28 U.S.C. sec. 1738C).
6 Laws of 1998, ch. 1 (codified at RCW 26.04.010, .020).
7 These were probably invalidated by constitutional amendments, statutory
changes, and court decisions in those states. See Apps. A, B.
8 Such marriage is among the rights or privileges reserved under the United
States and Washington Constitutions.
9 The fourteenth amendment to the United States Constitution reiterates,
No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the
laws.
This also demonstrates the authors of that amendment recognized a
difference between privileges and immunities and equal protection because
the clauses are set forth independently. Moreover, 'privileges and
immunities' are available only to 'citizens' whereas due process and equal
protection apply to 'any person.' See also Richard A. Epstein, Of Citizens
and Persons: Reconstructing the Privileges or Immunities Clause of the
Fourteenth Amendment, 1 N.Y.U. J. L. & Liberty 334, 340-49 (2005).
10 See also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394
(1873) (Bradley, J., dissenting) (citing Corfield v. Coryell, 6 F. Cas.
546).
11 'We cannot ignore the plain difference in the language and history that
exists between the federal equal protection clause and the privileges and
immunities language of our own constitution. To do so is to rewrite our
constitution without benefit of a constitutional convention and to deprive
the people of this state of additional rights, which they adopted in our
constitutional convention, without their consent.' State v. Smith, 117
Wn.2d 263, 282, 814 P.2d 652 (1991) (Utter, J., concurring).
12 As have the people in most other states through statutes and
constitutional amendments, defining marriage as between one man and one
woman, discussed infra and App. A.
13 See Jones v. Hallahan, 501 S.W.2d 588, 589 (1973) (noting that appellants
seeking to marry someone of the same-sex 'are prevented from marrying, not
by the statutes of Kentucky . . . but rather by their own incapability of
entering into a marriage as that term is defined.'). See also Goodridge,
440 Mass. at 351 (Spina, J., dissenting) ('The marriage statutes do not
disqualify individuals on the basis of sexual orientation from entering
into marriage. All individuals, with certain exceptions not relevant here,
are free to marry.').
14 See, e.g., Thomasson, 80 F.3d at 928 (rejecting heightened scrutiny of
''don't ask don't tell'' policy); Equality Found. v. City of Cincinnati,
128 F.3d 289, 292-93 (6th Cir. 1997) (holding the city charter's amendment
concerning sexual orientation was subject to 'rational relationship'
review); Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996), cert.
denied, 522 U.S. 807 (1997) (holding that homosexuality is not a suspect or
quasi-suspect class and that the military's 'don't ask don't tell' policy
is only subject to rational basis review).
15 See also Smelt v. County of Orange, 374 F. Supp. 2d 861, 875, aff'd in
part, vacated in part on other grounds, 447 F.3d 673 (9th Cir. 2006) ('The
U.S. Supreme Court and the Ninth Circuit recognize homosexuals as a
constitutionally protected class--although not a suspect or quasi-suspect
class--for equal protection purposes.' (citing Romer v. Evans, 517 U.S.
610, 631-32, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) and High Tech Gays,
895 F.2d at 573-74)); State v. Limon, 280 Kan. 275, 286, 122 P.3d 22 (2005)
(discussing Lawrence and concluding that 'the United States Supreme Court
has not recognized homosexuals as a suspect classification); Wilson v. Ake,
354 F. Supp. 2d 1298, 1307 (M.D. Fla. 2005) (citing Lofton as authority for
rejecting the claim that homosexuality is a suspect class under the equal
protection clause of the Fourteenth Amendment); In re Kandu, 315 B.R. 123,
144 (Bankr. W.D. Wash. 2004) (noting that Lawrence 'did not hold that same-
sex couples constitute a suspect or semi-suspect class under an equal
protection analysis').
16 What is 'fundamental' under the 'privileges and immunities' clause is
discussed, supra, pp. 10-11, 13.
17 Derived from that right are correlative liberty interests that include
the right to marital privacy, the right of married persons to have children
(or decide not to), and the right to direct the education and upbringing of
children. See Glucksberg, 521 U.S. at 720; Pierce v. Society of Sisters,
268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262
U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Troxel v. Granville, 530
U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
18 See Morrison v. Sadler, 821 N.E.2d 15, 48 (Ind. Ct. App. 2005) ('This
language linking marriage and procreation, particularly when combined with
the fact that marriage was undoubtedly viewed as an opposite-sex
institution in 1942, indicates that the Court 'was obviously contemplating
unions between men and women when it ruled that the right to marry was
fundamental.'' (quoting Baehr, 852 P.2d at 56)); Lewis v. Harris, 378 N.J
Super. 168, 191, 875 A.2d 259 (App. Div. 2005) ('Subsequent Supreme Court
decisions also indicate that the constitutionally protected right
recognized by the Court is the right of members of the opposite-sex to
marry.').
19 Courts have specifically held that Baker is binding precedent in
challenges to state marriage statutes. See, e.g., Sadler, 821 N.E.2d at 19
(describing Baker as 'binding United States Supreme Court precedent
indicating state bans on same-sex marriage do not violate the United States
Constitution'). See also, e.g., Hernandez v. Robles, 2006 N.Y. slip op.
5239, at *15 n.4, 2006 N.Y. LEXIS 1836, at *36 n.4 (Ct. App. July 6, 2006)
(Graffeo, J., concurring).
20 See Lofton, 358 F.3d at 815-16 (noting that '{t}he effect of {Lawrence}
was to establish a greater respect than previously existed in the law for
the right of consenting adults to engage in private sexual conduct.
Nowhere, however, did the Court characterize this right as
'fundamental.''(citation omitted)).
21 See, e.g., Lofton, 358 F.3d at 817 ('We conclude that it is a strained
and ultimately incorrect reading of Lawrence to interpret it to announce a
new fundamental right.'); Sadler, 821 N.E.2d at 20 ('The five justices of
the Lawrence majority, as well as Justice O'Connor in her concurring
opinion, do not appear to be prepared to extend the logic of their
reasoning to the recognition of same-sex marriage'); Kandu, 315 B.R. at 140
('{N}either the majority nor concurring opinions in Lawrence conclude that
the fundamental right to marry includes the right to marry someone of the
same sex. This Court views the Supreme Court's decision in Lawrence as
appropriately acknowledging that all people, no matter what their sexual
preferences, are entitled to respect for their private lives.'); Wilson,
354 F. Supp. 2d at 1306 ('{T}he majority in Lawrence was explicitly clear
that its holding did not extend to the issue of same-sex marriage
. . . .').
22 The cases are now so numerous, they are cited in App. B. Recent examples
are Hernandez, 2006 N.Y. slip op. 5239, 2006 N.Y. LEXIS 1836 (holding same-
sex 'marriage' is not a fundamental right and that article I, sections 6
and 11 of the New York Constitution do not compel state recognition of
marriages between persons of the same-sex); Standhardt v. Superior Court ex
rel. Maricopa, 206 Ariz. 276, 290, 77 P.3d 451, (Ct. App. 2003) ('we hold
that the fundamental right to marry protected by our federal and state
constitutions does not encompass the right to marry a same-sex partner'),
review denied 2004 Ariz. LEXIS 62; Kandu, 315 B.R. at 140 ('Based on the
specific directives provided by the Supreme Court for fundamental rights
analysis, and in the absence of binding precedent holding same-sex
marriages to be a fundamental right, this Court declines to hold that there
is a fundamental right to marry someone of the same-sex'); Wilson, 354 F.
Supp. 2d at 1306 ('no federal court has recognized that this {fundamental}
right includes the right to marry a person of the same sex.'); Sadler, 821
N.E.2d at 32 ('most courts have not looked favorably upon finding a
'fundamental right' to marry a person of the same-sex'); Smelt, 374 F.
Supp. 2d at 878 ('The history and tradition of the last fifty years have
not shown the definition of marriage to include a union of two people
regardless of their sex.'); Lewis, 378 N.J. Super. at 183 ('Marriage
between members of the same-sex is clearly not a 'fundamental right{ }
. . . deeply rooted in our legal tradition.'' (quoting Glucksberg, 521 U.S.
at 722)).
23 Similarly, the trial court in Andersen concluded that 'no case stands for
the proposition that that narrowly defined right {to marry someone of the
same-sex}, standing by itself, constitutes a fundamental right.' Andersen
v. King County, No. 04-2-049-64-4, 2004 WL 1738447, at *5 (King County
Super. Ct. Aug. 12, 2004).
24 See Loving, 388 U.S. at 11 ('{t}here is patently no legitimate overriding
purpose independent of invidious racial discrimination which justifies this
classification.').
25 See note 22, supra.
26 163 U.S. 537, 559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) (Harlan, J.,
dissenting) ('Our Constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil rights, all citizens
are equal before the law. The humblest is the peer of the most powerful.
The law regards man as man, and takes no account of his surroundings or of
his color when his civil rights as guaranteed by the supreme law of the
land are involved.').
27 'Heterosexual couples are the only couples who can produce biological
offspring of the couple.' Madsen, J., op. at 40. See Lewis, 378 N.J.
Super. at 199 (Parrillo, J.A.D., concurring) ('a core feature of marriage
is its binary, opposite-sex nature. . . . {T}he binary idea of marriage
arose precisely because there are two sexes.'); Goodridge, 440 Mass. at 357
n.1 (Sosman, J., dissenting) ('the reasons justifying the civil marriage
laws are inextricably linked to the fact that human sexual intercourse
between a man and a woman frequently results in pregnancy and childbirth
. . . that fact lies at the core of why society fashioned the institution
of marriage in the first place.'); Hernandez, 2006 N.Y. slip op. 5239, at
*5, 2006 N.Y. LEXIS 1836, at *6 (Observing that 'the vast majority of
children are born as a result of a sexual relationship between man and a
woman' and noting 'the undisputed assumption that marriage is important to
the welfare of children.').
28 See Lewis, 378 N.J. Super. at 197 (Parrillo, J.A.D., concurring)
('Marriage's vital purpose is not to mandate procreation but to control or
ameliorate its consequences -- the so-called 'private welfare' purpose. To
maintain otherwise is to ignore procreation's centrality to marriage.').
29 Sociological studies undermine the suggestion these relationships are
'permanent' as contrasted with traditional marriage. See infra, note 44.
30 See, e.g., Murphy v. Ramsey, 114 U.S. 15, 45, 5 S. Ct. 747, 29 L. Ed. 47
(1885) ("no legislation can be supposed more wholesome and necessary in the
founding of a free, self-governing commonwealth . . . than that which seeks
to establish it on the basis of the idea of the family, as consisting in
and springing from the union for life of one man and one woman'); Beason,
133 U.S. at 341 ('{Bigamy and polygamy} tend to destroy the purity of the
marriage relation, to disturb the peace of families, to degrade woman and
to debase man.').
31 1 U.S.C. sec. 7; 28 U.S.C. sec. 1738C (1997).
32 Baehr, 74 Haw. at 570.
33 See, e.g., Clerk's Papers (CP) at 465 (Floor Remarks of Rep. Sheehan on
Engrossed Substitute House Bill (ESHB) 1130, Feb. 4, 1998):
this bill is about who decides if there's going to be a change in that
institution. Should the decision be made by an unelected judge in another
state, for example Hawaii or Vermont? Or should the decision be made by
those of us here in this state?
See also CP at 477 (Floor Remarks of Rep. Pennington on ESHB 1130, Feb. 4,
1998):
we feel, many of us in the state of Washington and here in this chamber,
that we need to assert our right as a state to make this decision, that we
don't want it to be done by a judge in either Vermont or Hawaii, that we
are the elected body and we should make that decision as much as possible.
34 The legislative history clearly indicates that legislators supporting and
opposing DOMA all understood that preexisting Washington statutes were
premised upon marriage as the union of one man and one woman. See, e.g.,
CP at 444 (Floor Remarks of Rep. Constantine on SHB 1130, Mar. 18, 1997):
'the law of the state of Washington, our own revised code of Washington,
makes it clear that marriage is between a man and a woman. And our courts
have interpreted our statutes that way.'
35 See, e.g., CP at 442 (Floor Remarks of Rep. Sheehan on SHB 1130, Mar. 18,
1997):
And if a court case were to come to the supreme court, they would look to
our law, they would look to our statutes to say, how has the legislature
spoken on this issue? They can override an appellate court decision. So
it is important that it's in our code. It's important that it's in our
statute to give that guidance to the court if a case comes before us.
36 See CP at 460 (Floor Remarks of Rep. Thompson on ESHB 1130, Feb. 4,
1998):
The current law is not a supreme court law and in affect actually does not
cover the whole state as law. It is an appellate court decision in the
first division. . . .
37 See CP at 442, Floor Remarks of Rep. Sheehan, quoted supra, note 35.
38 See, e.g., CP at 443 (Floor Remarks of Rep. Thompson on SHB 1130, Mar.
18, 1997):
We already have one exception, on one type of marriage that we don't allow,
on common-law marriages. We don't give common-law marriages in Washington
state. But we do accept them from other states. We already have one
precedence {sic}. It would be very difficult, unless we have a specific
law against it, for us to say, well we're going to accept this one but
we're not going to accept that one. And that's where we run into the
situation with full faith and credits. But our legal opinions tell us very
clearly that if we show a strong position of the people in statute, either
from the legislature, an initiative, a referendum, then we have ourselves
covered. We have a very strong position. It doesn't mean it can never be
overturned. But it does show the best possible condition that we can,
under the situation.
39 See, e.g., CP at 461 (Floor Remarks of Rep. Thompson on ESHB 1130, Feb.
4, 1998):
We already have a precedence {sic} in this case where we have common-law
marriage. You can't get a common-law marriage in Washington state, but we
accept it from other states. We currently accept all marriages from all
other states. This is something that now we have to clarify. This bill
gives us that clear statutory policy. It does basically two things: it
says, number one, we define marriage as a contract between one man and one
woman. That is basically it. But then, two, it says we will not honor any
marriages from other states even though they might be legal in other states
if they don't meet this requirement of one man and one woman.
40 Even the Supreme Judicial Court of Massachusetts upheld its state law
prohibiting issuance of Massachusetts marriage licenses to nonresident same-
sex couples. Cote-Whitacre v. Dep't of Pub. Health, 446 Mass. 350, 844
N.E.2d 623 (Mass. 2006). See especially id. at 352-382 (Spina, J.,
concurring) (citing principles of comity and rejecting plaintiffs' contrary
claims based on the Massachusetts Declaration of Rights' guarantees of
equal protection and due process and the federal constitution's article IV,
section 2 privileges and immunities clause.)
41 See App. A
42 Testimony to the legislature underscored the importance of marriage to
civil society, citing several studies in support of the principle that
children benefit from being raised in families consisting of married
mothers and fathers. See CP at 372 (Hearing on HB 1130 Before the House
Law and Justice Comm., Feb. 4, 1998 Agenda at 36-37). Documentation
provided to the committee, which also is in the legislative record,
summarized studies establishing that children do not fare as well in
households where there is an adult male who is not the married, biological
father of the children. CP at 358.
43 The assessment summarized:
With respect to fatherlessness, quantifiable deficits occur in literally
every area of development -- social, psychological, intellectual,
educational, emotional, relational, medical, even with respect to
longevity, as well as with respect to sexuality, likelihood of cigarette
use, drug and alcohol abuse, age of onset of sexual activity and likelihood
of teen or earlier pregnancy.
CP at 540 (Decl. of Satinover).
44 As Dr. Satinover observed:
only recently has it occurred to anyone to question whether children
actually need mothers, so that the research confirming they indeed do,
convincing as it is, is smaller than that for fathers, whose necessity was
first questioned some forty years ago.
CP at 539-40 (Decl. of Satinover).
45 Studies cited find that the average same-sex female union lasted an
average of only 4.9 years, same-sex male couples 6.9 years, and the average
heterosexual couple 20 years. See CP at 535 (Decl. of Satinover).
46 See, e.g., Reno v. Flores, 507 U.S. 292, 310, 113 S. Ct. 1439, 123 L. Ed.
2d 1 (1993) (describing a state's express preference for custody of
children to reside with their biological parents 'whom our society and this
court's jurisprudence have always presumed to be the preferred and primary
custodians of their minor children.'); Bowen v. Gilliard, 483 U.S. 587,
614, 107 S. Ct. 3008 (1987) (Brennan, J., dissenting) (''{t}he optimal
situation for the child is to have both an involved mother and an involved
father.'' (quoting Henry B. Biller, Paternal Deprivation 10 (1974))).
47 Goodridge, 440 Mass at 386 n.23 (Cordy, J., dissenting) cites:
{H. Elaine} Rodney {& Robert Mupier}, Behavioral Differences between
African American Male Adolescents with Biological Fathers and Those Without
Biological Fathers in the Home, 30 J. Black Stud. 45, 53 (1999) (African-
American juveniles who lived with their biological fathers displayed fewer
behavioral problems); {Roland J.} Chilton {& Gerald E. Markle}, Family
Disruption, Delinquent Conduct and the Effect of Subclassification, 37 Am.
Soc. Rev. 93, 95 (1972) (higher proportion of youth charged with juvenile
offenses when not living in husband-wife family); {John P.} Hoffmann {&
Robert A. Johnson}, A National Portrait of Family Structure and Adolescent
Drug Use, 60 J. Marriage & Fam. 633 (1998) (children from households with
both mother and father reported relatively low use of drugs).
48 See also Lofton, 358 F.3d at 825:
we must ask not whether the latest in social science research and
professional opinion support the decision of the Florida legislature, but
whether that evidence is so well established and so far beyond dispute that
it would be irrational for the Florida legislature to believe that the
interests of its children are best served by not permitting homosexual
adoption.
49 See, e.g., CP at 465 (Floor Remarks of Rep. Sheehan on ESHB 1130, Feb. 4,
1998): 'This bill is not about an assault on a group of people or of a
lifestyle, this group, this bill is about upholding that institution of
marriage.' See also, e.g., CP at 477 (Floor Remarks of Rep. Pennington on
ESHB 1130, Feb. 4, 1998).
50 We have before us only the Washington legislative record, but comity and
precedent requires we extend the same presumption of legitimacy to the
United States Congress and President Clinton in adopting the federal DOMA.
51 Laws of 1998, ch. 1, sec. 2.
52 Goodridge, 440 Mass. at 385 (Cordy, J., dissenting) ('It is difficult to
imagine a State purpose more important and legitimate than ensuring,
promoting, and supporting an optimal social structure within which to bear
and raise children. At the very least, the marriage statute continues to
serve this important State purpose.').
53 See especially, Reynolds, 98 U.S. at 165-66, quoted supra, p. 32; Murphy,
114 U.S. at 45, quoted supra, p. 32 note 30; Maynard, 125 U.S. at 213,
quoted supra, p. 46).
54 Justice Sanders and I dissented from this court's decision in In re
Election Contest filed by Coday, 156 Wn.2d 485, 130 P.3d 809 (2006) that
later challenges to the problematic 2004 gubernatorial election were
controlled by one trial court decision that was not appealed. The
underlying issue preclusion theory applies to these cases since all claims
have now been considered and disposed of by this court.
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