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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 Tom Chambers
Concurring: Susan Owens
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/759341NO2.pdf
No. 75934-1
CHAMBERS, J. (concurring in dissent) -- I fully endorse the views of
Justice Fairhurst in dissent. I write separately to express my
disagreement with the lead opinion's analytical approach toward our state
constitution's privileges and immunities clause, article I, section 12.
The lead opinion concludes plaintiffs have not established "that they
have a fundamental right to marriage that includes the right to marry a
person of the same sex." Lead opinion at 5. Because the lead opinion
concludes that no fundamental right is implicated, the rest of its
discussion on article I, section 12 is unnecessary and dicta.
Our state 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.
Const. art. I, sec. 12. This text envisions a two part analysis: (1) has a
law been passed granting a citizen, class, or corporation a privilege or
immunity, and if so, (2) does that privilege or immunity belong equally to
all of us? Id. Accord James A. Bamberger, Confirming the Constitutional
Right of Meaningful Access to the Courts in Non-Criminal Cases in
Washington State, 4 Seattle J. Soc. Just. 383, 413-15 (2005).
The clause applies only if the law grants a privilege or immunity, though,
of course, it may be susceptible to other constitutional challenges.
The lead opinion states, without holding, that unless a statute grants
a privilege or immunity to a minority group, we will apply the tripartite
approach the federal courts have developed to interpret the federal equal
protection clause. It implies that we will follow the lead of the federal
courts in both analysis and result. But see Sofie v. Fibreboard Corp., 112
Wn.2d 636, 640, 771 P.2d 711 (1989);1 State ex rel. Bacich v. Huse, 187
Wash. 75, 80, 59 P.2d 1101 (1936), overruled on other grounds by Puget
Sound Gillnetters Ass'n v. Moos, 92 Wn.2d 939, 955, 603 P.2d 819 (1979).
Although the lead opinion cites authority for its conclusion, I disagree
with both its approach and its determination that the authorities cited
lead naturally to its conclusion. The fact that we have taken this
approach during the infancy of our interpretation of the clause does not
turn it into the law of this state. Our constitution demands a
deliberative process. We should not abdicate our responsibility to
interpret Washington's constitution to the judicial branch of a different
government, let alone defer to an interpretation of a different clause of a
different constitution.
Because, by its plain language, history, and structure, article I,
section 12 applies to any privilege or immunity granted by the State on
unequal terms and because I continue to believe, as we held in Grant County
Fire Protection District No. 5 v. City of Moses Lake, 150 Wn.2d 791, 806,
83 P.3d 419 (2004) (Grant County II), that our constitution protects the
privileges and immunities of "all citizens," I write separately.
WHAT ARE PRIVILEGES AND IMMUNITIES?
Privileges and immunities can be traced back at least to the Middle
Ages in canonical law. At that time, they were rights granted to specific
individuals or groups. See R.H. Helmholz, Magna Carta and the Ius
Commune, 66 U. Chi. L. Rev. 297, 330, 349 (1999).2 However, these terms
acquired new meanings under English secular law. David S. Bogen, The
Privileges and Immunities Clause of Article IV, 37 Case W. Res. L. Rev.
794, 802 (1987). Privileges and immunities came to encompass the basic
rights of English and American citizenship that were granted to all
citizens, not merely to some privileged group. See Corfield v. Coryell, 6
F. Cas. 546, 551-52, 4 Wash. C. C. 371 (C.C.E.D. Pa. 1823); cf. Paul v.
Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L. Ed. 357 (1869) (rejecting
natural law approach); Bogen, supra, at 800.
More than a century ago, a legal scholar catalogued many state court
decisions construing their own privileges and immunities clauses in terms
of what was and was not included. W.J. Meyers, The Privileges and
Immunities of Citizens in the Several States, 1 Mich. L. Rev. 286 (1902).
Professor Meyers concluded, "{r}oughly, 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.
This court has never definitively defined "privileges or immunities"
under our own constitution. We did come close more than a century ago,
noting that "privileges and immunities {are} those fundamental rights which
belong to the citizens of the state by reason of such citizenship." State
v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902) (emphasis added) (citing
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest
Upon the Legislative Power of the States of the American Union 597 (6th ed.
1890)). In other words, in general terms, privileges and immunities are
those personal, fundamental rights that belong to each of us by virtue of
our citizenship.3 The legislature may, perhaps, expand the privileges and
immunities of citizenship, but where it does, it is bound by the
constitution to do so on equal terms.
I conclude that properly read, article I, section 12 of the Washington
Constitution protects us against all governmental actions that create
unmerited favoritism in granting fundamental personal rights. See State v.
Smith, 117 Wn.2d 263, 283, 814 P.2d 652 (1991) (Utter, J., concurring).
Again, nothing in the text of our constitution supports a conclusion that
we should follow the federal interpretation of a different clause of the
United States Constitution unless the law grants a privilege and immunity
to a minority. Instead, we should conclude that our privileges and
immunities clause protects against all laws that grant privileges or
immunities, "which upon the same terms shall not equally belong to all."
Const. art. I, sec. 12. While the privileges and immunities clause may
have been inspired in part by preventing the State from granting privileges
to a few, cf. State v. Clark, 291 Or. 231, 236, 630 P.2d 810 (1981), the
clause protects all of us from privileges granted on unequal terms.
EQUAL PROTECTION VS. PRIVILEGES AND IMMUNITIES
If both equal protection and privileges and immunities involve the
giving or withholding of rights, how do these concepts differ? There is
certainly overlap -- both "seek to prevent the State from distributing
benefits and burdens unequally." Smith, 117 Wn.2d at 283 (Utter, J.,
concurring). But there are important differences analytically.
First, the denial of any right implicates the federal equal protection
clause. U.S. Const. amend. XIV, sec. 1. The fact that the right is
fundamental merely elevates the level of scrutiny. See generally Korematsu
v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944). But
only the privileges and immunities of citizenship implicate article I,
section 12. Vance, 29 Wash. at 458.
Second, both equal protection and privileges and immunities involve
classifications. A law that grants a privilege to some necessarily
excludes others based upon a classification. Classifications may of
course be proper; there is nothing unconstitutional about limiting criminal
penalties to those who have been properly tried and convicted of crimes or
limiting the right to practice law to those who have passed a bar
examination. Once a legitimate class has been defined, the law must treat
its members the same. Equal protection prevents discrimination against
some class; privileges and immunities prevents favoritism. See Smith, 117
Wn.2d at 283; State v. Savage, 96 Or. 53, 59, 184 P. 567, 189 P. 427
(1919).4
In Smith, Justice Utter wrote separately to analyze whether
Washington's privileges and immunities clause should be interpreted
independently and differently from the federal and state equal protection
clauses. He largely embraced the analysis of our sister state, Oregon.
Smith, 117 Wn.2d at 287-91 (citing State v. Clark, 291 Or. 231). One
significant difference between equal protection and privileges and
immunities is that an individual does not have to assert that she has been
denied a right as an individual or as a member of a disfavored class. She
need not show discrimination. She need only show that some person or class
of which she is not a member has been singled out for a privilege she does
not receive; unless, of course, the State can show a justification for the
difference in treatment. Otherwise, the challenged legislation is beyond
the power of the State to enact. Const. art. I, sec. 12. The standard set
by the privileges and immunities clause is perhaps the best test of justice
and equality under the law for all.
DOES IT MATTER WHETHER A MAJORITY OR MINORITY RECEIVES THE PRIVILEGE OR
IMMUNITY?
This court has never held, after full due consideration, that the
effect of article I, section 12 is limited to positive grants of favoritism
to a minority class. The lead opinion unfortunately makes reference to
"grant{s} of positive favoritism to minorities," as having some
constitutional significance in our analysis, but relies upon Grant County
II, 150 Wn.2d 791, and Smith, 117 Wn.2d at 282 (Utter, J., concurring).
Lead opinion at 11. The opinion I signed in Grant County II did not hold
that the protections of the privileges and immunities clause effectively
extended only to outraged majorities, and saying that we did so hold then
does not make it a holding of the court now.5
In Grant County II, this court concluded that our state privileges and
immunity clause was different from and may provide greater protections than
its federal counterpart. Grant County II, 150 Wn.2d at 811. Because of
our shared history and textual similarities between Washington's and
Oregon's privileges and immunities clauses, we have relied heavily on
Oregon Supreme Court opinions. The only difference between the Washington
and Oregon clauses is Washington's added reference to corporations. We
explained that the corporate reference was added because our framers were
gravely concerned with the effect of large concentrations of wealth and the
undue political influence of corporations. Grant County II, 150 Wn.2d at
808.
After a review of history and case law, this court concluded simply,
"{f}or a violation of article I, section 12 to occur, the law, or its
application, must confer a privilege to a class of citizens." Grant County
II, 150 Wn.2d at 812. Grant County II relied upon both Smith, 117 Wn.2d
263, and Clark, 291 Or. 231.6 There is nothing in these cases or the
authorities upon which they rely that should lead to the conclusion that
the class receiving the benefit must be a minority class before we will
independently examine our state constitution. Such a limitation upon our
state's privileges and immunities clause would be, in my view, a far
greater limitation than any other state has placed on its privileges and
immunities clause in the modern era.
HAS THE PRIVILEGES AND IMMUNITIES QUESTION BEEN ANSWERED?
Finally, the lead opinion begins its privileges and immunities
analysis at the end of the analysis. The proper question is whether
marriage is a fundamental right that belongs to each of us by reason of our
citizenship. Our founders would have answered that question with a
resounding yes! Having determined that marriage is a privilege of
citizenship, the next step is to determine whether the privilege is
available to all on equal terms. This step necessarily requires the court
to determine whether the challenger is challenging a valid classification.
Instead of engaging in an independent analysis of the State's
privileges and immunities clause, the lead opinion relies upon the
analytical framework developed to interpret the federal equal protection
clause. Given the resolution of this case and my adherence to the dissent,
I find it unnecessary to explore this issue further. However, it is
important to stress that the lead opinion has neither addressed nor
answered the important privileges and immunities arguments raised by the
respondents. Resolution of these important questions will have to wait for
another day.
CONCLUSION
I take the time to discuss article I, section 12 of our state
constitution because, in constitutional terms, it is still in its infancy.
But it is clearly not the same as equal protection. While the privileges
and immunities clause in the fourteenth amendment to the United States
Constitution was arguably to prevent states from granting fundamental
rights to some of its citizens and not others, to our founders it was also
a major component of the guaranty of equality for all. Article I, section
12 should be permitted to be interpreted and applied as our founders
intended. As the judicial body charged with its interpretation, we should
do so with utmost care. We should interpret our constitution only when the
issues are properly framed and argued by real parties at interest and
essential to the outcome of the case, not when they have been rendered
effectively irrelevant by the court's disposition of predicate issues.
While I certainly understand the temptation to reach every issue, if only
to show that we thought it through, I do not believe it is the best way to
develop our jurisprudence.
With these observations, I concur in dissent.
AUTHOR:
Justice Tom Chambers
WE CONCUR:
Justice Susan Owens
1 In Sofie, Justice Utter cogently noted that this court had 'generally
followed the federal tiered scrutiny model of equal protection analysis . .
. . because a separate analysis focusing on the language and history of our
state constitution has not been urged.' Sofie, 112 Wn.2d at 640 (citation
omitted).
2 See also Barbara Mahoney, The Privileges or Immunities Clause in the
Washington State Constitution: A Source of Substantive Rights? 4-6 (Feb.
12, 2002) (unpublished manuscript available in the University of Washington
Gallagher Law Library); Barbara J. Rhoads-Weaver, Has the Legislature
Crossed the Boundaries Imposed by Article I, sec. 12 of the Washington
Constitution by Using Class Legislation to Grant Marriage Licenses
Exclusively to Opposite-Sex Couples? (Spring 2002) (unpublished manuscript
on file in the Washington State Supreme Court).
3 I agree with my colleagues Justices Jim Johnson and Richard Sanders to
this extent; the appropriate analytical approach to article I, section 12
is to determine (1) whether the law grants a privilege or immunity and (2)
whether it is available to all on equal terms. See concurrence (J.M.
Johnson, J.) at 8.
4As the Oregon Supreme Court held: 'The provisions of the state
Constitution are the antithesis of the fourteenth amendment in that they
prevent the enlargement of the rights of some in discrimination against the
rights of others, while the fourteenth amendment prevents the curtailment
of rights.' Savage, 96 Or. at 59; see also Tanner v. Or. Health Scis.
Univ., 157 Or. App. 502 522-25, 971 P.2d 435 (1998) (construing Oregon's
privileges and immunities clause to protect gays and lesbians).
5 I stress that the lead opinion does not explicitly hold that the
privileges and immunities clause applies only when a statute grants a
privilege or immunity to a minority.
6 It is important to remember that in Smith, the issue discussed by Justice
Utter was whether disparate treatment between juvenile defendants and adult
defendants either discriminated against juveniles in violation of equal
protection or was a privilege for adults. In the criminal justice system,
adults are not a minority. Similarly, in Clark the issue was whether a
preliminary hearing available to most criminal defendants but not to those
indicted by grand jury was a privilege to the majority.
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