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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 Mary Fairhurst
Concurring: Tom Chambers
Susan Owens
Bobbe J Bridge
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/759341NO3.pdf
No. 75934-1
FAIRHURST, J. (dissenting) - In these consolidated cases, 19 gay and
lesbian couples petitioned to receive the same right that all heterosexual
Washington residents enjoy--the right to marry the person of one's choice.
See Clerk's Papers (CP) at 93-130 (Castle v. Washington, No. 04-02-00614-4,
2004 WL 1985215, Mem. Opinion on Constitutionality RCW 26.02.010 and RCW
26.02.0201 (unpublished order) (Thurston County Super. Ct. Sept. 7, 2004))
{hereinafter CP (Castle)}; CP at 876-901 (Andersen v. King County, No. 04-2-
04964-4-SEA, 2004 WL 1738447, Mem. Opinion and Order on Cross Mots. for
Summ. J. (unpublished order) (King County Super. Ct. Aug. 4, 2004))
{hereinafter CP (Andersen)}. In each case, the trial court found on
multiple grounds that the denial of that right, as codified in RCW
26.04.010(1) and .020(1)(c), was unconstitutional. Yet, Justice Madsen's
plurality opinion (plurality) reverses those trial courts based on "{t}he
case law" that purportedly "controls our inquiry." Plurality at 59.
Neither an objective analysis of relevant law nor any sense of justice
allows me to agree with the plurality.
The plurality and concurrence condone blatant discrimination against
Washington's gay and lesbian citizens in the name of encouraging
procreation, marriage for individuals in relationships that result in
children, and the raising of children in homes headed by opposite-sex
parents, while ignoring the fact that denying same-sex couples the right to
marry has no prospect of furthering any of those interests.2 With the
proper issue in mind--whether denying same-sex couples the right to marry
will encourage procreation, marriage for individuals in relationships that
result in children, or child rearing in households headed by opposite-sex
parents--I would hold that there is no rational basis for denying same-sex
couples the right to marry.
I would hold further that the right to marry the person of one's choice is
a fundamental right, the denial of which has historically received
heightened scrutiny. It is error to artificially limit the inquiry, as the
plurality and concurrence do, to whether there is a fundamental right to
same-sex marriage.3 It is equally incorrect to limit the definition of the
right to marry to the right to marry a person of the opposite sex. Because
the Defense of Marriage Act's (DOMA's) denial of the right to marry to same-
sex couples is not rationally related to any asserted state interest, it is
also not narrowly tailored to any compelling state interest.
Therefore, for both of these reasons, I would affirm the two trial courts
in declaring RCW 26.04.010(1) and .020(1)(c) unconstitutional. The
plurality uses the excuse of deference to the legislature to perpetuate the
existence of an unconstitutional and unjust law. I dissent.
ANALYSIS
Marriage is a right "older than the Bill of Rights--older than our
political parties, older than our school system." Griswold v. Connecticut,
381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). "Without
question, civil marriage enhances the 'welfare of the community.' It is a
'social institution of the highest importance.'" Goodridge v. Dep't of
Pub. Health, 440 Mass. 309, 322, 798 N.E.2d 941 (2003) (quoting French v.
McAnarney, 290 Mass. 544, 546, 195 N.E. 714 (1935)).
Civil marriage is a legal status given to individuals who seek the State's
recognition of their committed relationships.4 See Wash. Statewide Org. of
Stepparents v. Smith, 85 Wn.2d 564, 568-69, 536 P.2d 1202 (1975); In re
Marriage of J.T., 77 Wn. App. 361, 363, 891 P.2d 729 (1995). This legal
status is accompanied by numerous legal, social, and financial benefits and
obligations, many of which cannot be secured outside of marriage.5 Indeed
the Andersen respondents reference 423 state statutes that grant rights or
impose duties based in part on marital status. Br. of Resp'ts at 26.
There is no substitute for the legal protections provided by the State to
married couples and their families. There is no equally respected social
union. Nor is there a comparable public acknowledgment of a couple's
decision to commit their lives to each other.
But, in 1996, in response to Hawaii's conclusion in Baehr v. Lewin, 74 Haw.
530, 852 P.2d 44 (1993), that denial of marriage licenses to same-sex
couples was gender discrimination,6 the United States Congress passed the
Defense of Marriage Act (federal DOMA), Pub. L. No. 104-199, 110 Stat. 2419
(1996).7 The federal DOMA defined marriage as being only between a man and
a woman and allowed states to refuse to recognize same-sex marriages
authorized in other places.8 Id. In 1998, Washington followed suit,
explicitly referencing the federal DOMA and enacting its own DOMA. Laws of
1998, ch. 1.9 Laws of 1998, chapter 1, section 2(1) states that "{i}t 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." Section 2(2)
then recognized Singer v. Hara, 11 Wn. App. 247, 522 P.2d 1187 (1974),
where the Court of Appeals held that the Washington marriage statute did
not allow same-sex marriage and that the 1972 Equal Rights Amendment (ERA)
to the Washington Constitution, article XXXI, section 1, did not require
it, and stated the legislature's intent to codify Singer. Further, that
section explicitly "establish{ed} public policy against same-sex marriage
in statutory law that clearly and definitively declares same-sex marriages
will not be recognized in Washington."10 Laws of 1998 ch. 1, sec. 2(2).
To that end, DOMA amended RCW 26.04.010(1) to define marriage as "a civil
contract between a male and a female who have each attained the age of
eighteen years, and who are otherwise capable." (emphasis added). Then,
amending RCW 26.04.020, DOMA explicitly prohibited marriage between parties
"other than a male and a female"--i.e., same-sex couples. Thus, DOMA
"defends" and "protects" marriage from an entire class of people,
homosexuals. RCW 26.04.020(1)(c).
Respondents argue that denial of their right to marry violates several
provisions of the Washington Constitution: (1) article I, section 12, the
privileges and immunities clause; (2) article I, section 7, the private
affairs clause; (3) article I, section 3, the due process clause; and (4)
article XXXI, section 1, the ERA. The plurality analyzes each argument in
turn and concludes that no independent state constitutional analysis is
appropriate, no heightened scrutiny is justified under any of respondents'
arguments, and that DOMA's denial of the right to marry to same-sex couples
is rationally related to the State's interests in encouraging procreation,
marriage for individuals in relationships that result in children, and the
raising of children in homes headed by opposite-sex parents.
By doing so, the plurality shirks its responsibility to the people of this
state to enforce the rule of law embodied in our constitution and to uphold
the fundamental principles of justice. See Const. art. IV, sec. 1.
Although not explicit, our state's constitution establishes a framework for
the separation of powers. See Const. art. II ("Legislative Department");
Const. art. III ("The Executive"); Const. art. IV ("The Judiciary").
However, the doctrine of separation of powers is also complemented and
modified by the theory of checks and balances. See In re Salary of the
Juvenile Dir., 87 Wn.2d 232, 238, 552 P.2d 163 (1976). While it is the
legislature's duty to make public policy decisions and enact laws, when the
legislature enacts a law violative of our state's constitutional guaranties
this court can and must invalidate the law.11 See State v. Wheeler, 145
Wn.2d 116, 132, 34 P.3d 799 (2001) (Sanders, J., dissenting) ("'{W}e must
never forget that it is a constitution we are expounding,' and it is the
protection of the constitutional rights of the litigants before us which is
our ultimate responsibility. The Constitution speaks the language of
principle. And so must we." (quoting McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 407, 4 L. Ed. 579 (1819)).
As our nation's history reflects, it is often left to the judicial branch
to ensure acts of our legislature or the executive are not violative of the
constitutional rights of the people. See, e.g., Brown v. Bd. of Educ., 347
U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (holding that segregation in
public schools on the basis of race violated the federal constitution's
equal protection guaranty); Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817,
18 L. Ed. 2d 1010 (1967) (holding Virginia's antimiscegenation statutes
violated federal equal protection and due process guaranties); Lawrence v.
Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) (holding
Texas' sodomy statute violated due process guaranties). This task is not
one undertaken lightly, nor easily completed, but it is our task.
A. Denying same-sex couples the right to marry fails rational basis
review
The challenged statutes do not rationally relate to nor further any
legitimate governmental interest. DOMA creates a class-based distinction
which grants opposite-sex couples certain and substantial "privileges"
while explicitly denying those same privileges to same-sex couples.12 See
Const. art. I, sec. 12 ("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.").13 The privileges and immunities clause, like
the federal constitution's equal protection counterpart, requires that
similarly situated persons receive like treatment--a statute may not grant
a privilege to one class of persons that is denied to another class.14 See
State v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996). For the
purposes of article I, section 12, privileges are "those fundamental rights
which belong to the citizens of the state by reason of {their state}
citizenship." State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902).
A statutory classification must have a rational basis. Under rational
basis review, the classification "must be rationally related to a
legitimate state interest, and will be upheld unless the classification
rests on grounds wholly irrelevant to the achievement of a legitimate state
objective." DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d
919 (1998); see also Manussier, 129 Wn.2d at 673. However, a "reasonable
ground must exist for making a distinction between those who fall within
the class and those who do not." State ex rel. Bacich v. Huse, 187 Wash.
75, 80, 59 P.2d 1101 (1936). "The search for the link between
classification and objective gives substance to the Equal Protection
Clause." Romer v. Evans, 517 U.S. 620, 632, 116 S. Ct. 1620, 134 L. Ed. 2d
855 (1996). Finding this link, or rational basis, ensures that
"classifications are not drawn for the purpose of disadvantaging the group
burdened by the law." Id. at 633.15
Despite the deference afforded to the legislature, the rational basis
standard is not without teeth--"the court's role is to assure that even
under this deferential standard of review the challenged legislation is
constitutional."16 DeYoung, 136 Wn.2d at 144. Moreover, this court tends
to afford more deference to the legislature when considering economic
statutes than it does when considering regulations curtailing personal
civil liberties. Yakima County Deputy Sheriff's Ass'n v. Bd. of Commr's,
92 Wn.2d 831, 839, 601 P.2d 936 (1979) (Utter, CJ., concurring); see also
Lawrence, 539 U.S. at 579-80 (O'Connor, J., concurring). However, we have
not been afraid to declare even economic statutes unconstitutional under
rational basis review.17
Especially relevant here is DeYoung, where we considered an eight-year
statute of repose for medical malpractice actions, which the State opined
was rationally related to protecting insurance companies. 136 Wn.2d at
147. We reasoned that although a rational basis can be based on
unsupported speculation, "the relationship of a classification to its goal
must not be so attenuated as to render the distinction arbitrary or
irrational." Id. at 149. We then concluded that because the statute could
reduce insurance claims by only 0.2 percent, the relationship between the
statute and the goal of protecting insurance companies was too attenuated
and the statute was thus without a rational basis. Id. at 149-50.
The plurality here attempts to minimize and distinguish away this court's
analysis in DeYoung by pointing out that in that case, evidence
"affirmatively showed that the challenged legislation could not rationally
be thought to have furthered the identified legislative interests."
Plurality at 34 n.13. But that conclusion in DeYoung is not the basis to
distinguish it from this case. Rather, it supports holding similarly here-
-that the statutory denial of the right to marry to same-sex couples cannot
rationally further the proffered state interests. The relationship between
the denial of the right to marry to same-sex couples and the purported
state interests is simply too attenuated to be rational. Contrary to the
plurality's conclusion, DeYoung supports and demands that this court
declare DOMA, which curtails civil liberties and demands even more
scrutiny, unconstitutional.
In a sweeping motion, the plurality accepts as legitimate the interests the
State puts forth for denying same-sex couples the right to marry--
encouraging procreation, encouraging marriage for individuals in
relationships that result in children, and encouraging the raising of
children in homes headed by opposite-sex parents.18 Plurality at 38-39, 41-
42, 48. Even if we accept the proffered interests as legitimate, the
plurality and the State fail to address or explain the issue this case
raises, that is, how those interests are furthered by denying same-sex
couples the right that heterosexual couples already enjoy.19 That failure
is in part due to the plurality's incorrect framing of the issue.
Contrary to the plurality's discussion, this case does not present the
issue of whether allowing opposite-sex couples the right to marry is
rationally related to the State's supposed interests in encouraging
procreation, marriage for relationships that result in children, and
traditional child rearing. Undoubtedly, state-sanctioned, opposite-sex
marriage has a conceivable rational basis--some opposite-sex couples can
procreate, and the State may have a legitimate interest in encouraging
procreation and family stability by allowing such couples to marry.
But DOMA in no way affects the right of opposite-sex couples to marry--the
only intent and effect of DOMA was to explicitly deny same-sex couples the
right to marry. Therefore, the question we are called upon to ask and
answer here, which the plurality fails to do, is how excluding committed
same-sex couples from the rights of civil marriage furthers any of the
interests that the State has put forth.20 Or, put another way, would giving
same-sex couples the same right that opposite-sex couples enjoy injure the
State's interest in procreation and healthy child rearing?
These inquiries do not constitute heightened scrutiny, nor do they
investigate overinclusiveness and underinclusiveness. This is rational
basis review, as this court has conducted before but, for reasons entirely
unclear, refuses to do so now. Overinclusiveness and underinclusiveness
analysis first presumes that a rational relationship exists between the
undeniably discriminatory statute and a legitimate state interest. The
State has failed to articulate how the exclusion of same-sex couples from
the right to marry is rationally related to any legitimate interests.
Analyzing each proffered state interest in turn, it becomes clear that not
one is furthered by denying same-sex couples the right to marry. First,
the plurality identifies encouraging procreation as a legitimate state
interest. Plurality at 38-39. But there is no logical way that denying
the right to marry to same-sex couples will encourage heterosexual couples
to procreate with greater frequency. Second, the plurality points to
encouraging marriage for relationships that result in children as a valid
state interest. Id. But denying same-sex couples the right to marry also
will not encourage couples who have children to marry or to stay married
for the benefit of their children. Finally, the plurality declares that
DOMA may be rationally related to the State's interest in encouraging the
raising of children in homes headed by opposite-sex couples. Plurality at
39. Even if such a goal is valid, which seems unlikely, denying same-sex
couples the right to marry has no hope of increasing such child rearing.
The denial of the right to marry to an entire class of persons is
completely unrelated to the proffered state interests. Thus, DOMA is not
merely underinclusive and/or overinclusive, it is wholly irrational.
DOMA does not further the asserted interests because, despite DOMA's intent
to "defend" marriage, the exclusionary language in RCW 26.04.010(1) does
not lend the institution of marriage its power. Rather, marriage draws its
strength from the nature of the civil marriage contract itself and the
recognition of that contract by the State. The civil contract and its
subsequent recognition are what further the State's asserted interests in
procreation, marriage for individuals in relationships that result in
children, and child rearing in households headed by opposite-sex parents.
The respondents in these cases do not challenge the existence of civil
marriage contracts for opposite-sex couples or the recognition of those
contracts by the State but, instead, challenge their exclusion from the
ability to form those contracts and to have them recognized.
Rather than furthering legitimate interests, denial of the right to marry
will certainly harm children of same-sex couples, couples to whom the State
has given its blessing to adopt or beget children through artificial means,
but upon whom the State has turned its back once those children are
integrated into their families. It is those children who actually do and
will continue to suffer by denying their parents the right to marry.
Accord Goodridge, 440 Mass. at 335 ("Excluding same-sex couples from civil
marriage will not make children of opposite-sex marriages more secure, but
it does prevent children of same-sex couples from enjoying the immeasurable
advantages that flow from the assurance of 'a stable family structure in
which children will be reared, educated, and socialized.'" (quoting id. at
381 (Cordy, J., dissenting))); Baker v. State, 170 Vt. 194, 744 A.2d 864,
882 (1999) ("If anything, the exclusion of same-sex couples from the legal
protections incident to marriage exposes their children to the precise
risks that the State argues the marriage laws are designed to secure
against." (emphasis added)). In that way, DOMA degrades the interests
asserted by the State rather than furthers them. That degradation discerns
an even greater attenuation between the statute and its goals than was the
0.2 percent relationship in DeYoung, which this court concluded was
irrational. The relationship is simply too attenuated. Thus, DOMA fails
rational basis review and violates article I, section 12 of the Washington
Constitution.21
Having determined there is no rational basis for denying same-sex couples
the right to marry, I conclude that DOMA was motivated solely by animus
toward homosexuals. When no rational basis supports a discriminatory
statute, this court may presume that the statute is motivated by animus.
See Romer, 517 U.S. at 632-35 (holding that a constitutional amendment to
the Colorado Constitution that made antidiscrimination laws protecting
homosexuals unconstitutional raised "the inevitable inference that the
disadvantage imposed is born of animosity toward the class of persons
affected" and was a "status-based enactment divorced from any factual
context from which {the Court} could discern a relationship to legitimate
state interests."). Animus is per se irrational and cannot support a
statutory classification. United States Dep't of Agric. v. Moreno, 413
U.S. 528, 534, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973) (holding that a
statutory classification limiting participation in the Food Stamp Act to
households composed of related individuals could not be sustained by
legislative history indicating that the classification was intended to
prevent "hippies" from participating); Miguel v. Guess, 112 Wn. App. 536,
553, 51 P.3d 89 (2002) ("A discriminatory classification that is based on
prejudice or bias is not rational as a matter of law."), review denied, 148
Wn.2d 1019, 64 P.3d 650 (2003).
Therefore, I would hold that DOMA's arbitrary denial of privileges
associated with the right to marry to same-sex couples as a class violates
article I, section 12 of the Washington Constitution and affirm the two
trial courts.
B. DOMA also fails the heightened scrutiny associated with interference
with the fundamental right to marry
If a statutory classification interferes with a fundamental right, then the
statutory classification must be narrowly tailored to effectuate a
compelling state interest. Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.
Ct. 673, 54 L. Ed. 2d 618 (1978); Manussier, 129 Wn.2d at 672-73.
Fundamental rights are those deeply rooted in history and tradition and
implicit in the concept of ordered liberty.22 Washington v. Glucksberg, 521
U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).
Due process has not been reduced to any formula ; its content cannot
be determined by reference to any code. The best that can be said is that
through the course of this Court's decisions it has represented the balance
which our Nation, built upon postulates of respect for the liberty of the
individual, has struck between that liberty and the demands of organized
society. . . . The balance of which I speak is the balance struck by this
country, having regard to what history teaches are the traditions from
which it developed as well as the traditions from which it broke. That
tradition is a living thing.
Poe v. Ullman, 367 U.S. 497, 542, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961)
(Harlan, J., dissenting).
It is indisputable that marriage is a fundamental right. "Marriage is . .
. something more than a civil contract subject to regulation by the state
; it is a fundamental right of free men." Perez v. Sharp, 32 Cal. 2d 711,
714, 198 P.2d 17 (1948) (emphasis added). The right to marry has been
recognized as fundamental by both state and federal courts. See, e.g.,
Turner v. Safley, 482 U.S. 78, 94-99, 107 S. Ct. 2254, 96 L. Ed. 2d 64
(1987); Boddie v. Connecticut, 401 U.S. 371, 383, 91 S. Ct. 780, 28 L. Ed.
2d 113 (1971) (describing marriage as a fundamental human relationship);
Zablocki, 434 U.S. at 384 ("{T}he right to marry is of fundamental
importance for all individuals." (emphasis added)); Loving, 388 U.S. at 12
("The Fourteenth Amendment requires that the freedom of choice to marry not
be restricted by invidious racial discriminations." (emphasis added));
Griswold, 381 U.S. at 485-86; Maynard v. Hill, 125 U.S. 190, 205, 211, 8 S.
Ct. 723, 31 L. Ed. 654 (1888) (characterizing marriage as "the most
important relation in life" and the "foundation of the family and of
society, without which there would be neither civilization nor progress.");
Davis v. Dep't of Employment Sec., 108 Wn.2d 272, 280, 737 P.2d 1262 (1987)
("The right to marry is fundamental."); Levinson v. Wash. Horse Racing
Comm'n, 48 Wn. App. 822, 824, 740 P.2d 898 (1987) ("The right to marry is a
fundamental constitutional right.").
The plurality admits that courts have historically recognized a fundamental
right to marry, but holds that that right extends only to individuals
wishing to marry a partner of the opposite sex. Plurality at 30-31.23 In
its analysis, the plurality asks whether history and tradition support a
fundamental right to "same-sex marriage," and concludes that it does not--
"{t}he vast majority of states historically and traditionally have
contemplated marriage only as opposite-sex marriage, and the majority of
states, including Washington, have recently reaffirmed this understanding
and tradition." Plurality at 32. The circularity of this reasoning
reveals its fatal flaw: our history necessarily cannot include a right to
same-sex marriage when that right historically has been denied.24
By defining the right at issue so narrowly, the plurality departs from the
Supreme Court's analysis of governmental intrusions on fundamental rights
where it has been careful to broadly define the right at hand. For
example, in Meyer v. Nebraska, 262 U.S. 390, 399-403, 43 S. Ct. 625, 67 L.
Ed. 1042 (1923), and Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35, 45
S. Ct. 571, 69 L. Ed. 1070 (1925), the Court considered whether there was a
fundamental right to decisions in educating one's children, not whether
there was a fundamental right to have your children learn German or attend
a private school. Likewise, in Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535, 536, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), the Court asked
whether there was a fundamental right to be free from unwarranted
government intrusion into decisions whether to have children, not whether a
convicted criminal had a fundamental right to reproduce. In Zablocki, 434
U.S. at 383, and Turner, 482 U.S. at 95-96, the Court considered whether
there was a fundamental right to be free from unwarranted governmental
intrusion in decisions to marry, not whether delinquent fathers or inmates
had a fundamental right to marry. Perhaps most relevant and important
here, in Loving, the Court asked whether there was a fundamental right to
marry, not whether there was a fundamental right to interracial marriage.
Loving, 388 U.S. at 12.
In Lawrence the Supreme Court recently again recognized the importance of
broadly defining the right at issue. 539 U.S. at 566-67. The Lawrence
Court corrected the error that it made in Bowers v. Hardwick, of too
narrowly defining the implicated right. Bowers v. Hardwick, 478 U.S. 186,
190, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), overruled by Lawrence, 539
U.S. at 558 (2003). The plurality here makes the same error as the Bowers
Court of too narrowly defining the implicated right.
In Bowers, the Court asked "whether the Federal Constitution confers a
fundamental right upon homosexuals to engage in sodomy." 478 U.S. at 190.
In its analysis of that issue, the Court scorned the Eleventh Circuit Court
of Appeals for construing the Constitution "to confer a right of privacy
that extends to homosexual sodomy." Id. The Court reasoned that none of
the privacy cases, which dealt with decisions in child rearing and
education, family relationships, procreation, marriage, contraception, and
abortion, concerned rights resembling a right to homosexual sodomy. Id. at
190-91. The Court went on to explain that the right to homosexual sodomy
was neither "'implicit in the concept of ordered liberty'" nor "'deeply
rooted in this Nation's history and tradition.'" Id. at 191-92 (quoting
Moore v. East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d
531 (1977)).
But in Lawrence, the Supreme Court recognized that its contrived framing of
the issue in Bowers was a "failure to appreciate the extent of the liberty
at stake."25 Lawrence, 539 U.S. at 566-67. "To say that the issue in
Bowers was simply the right to engage in certain sexual conduct demeans the
claim the individual put forward, just as it would demean a married couple
were it to be said marriage is simply about the right to have sexual
intercourse." Id. at 567. Thus, the Court reframed its look at history
and tradition and concluded there was "an emerging awareness that liberty
gives substantial protection to adult persons in deciding how to conduct
their private lives in matters pertaining to sex." Id. at 572.
Rather than learning from the embarrassments of history, the plurality
instead repeats the same transgressions. By narrowly redefining the right
at stake, the plurality makes the same analytical error that the Supreme
Court repeatedly has declared incorrect. Instead of considering government
intrusion on the fundamental right to marry, the plurality considers the
existence of a fundamental right to same-sex marriage, which necessarily is
unsupported by our history and tradition. See Lawrence, 539 U.S. at 574;
plurality at 26-29, 31-32. But this case is no more about the fundamental
right to same-sex marriage than Bowers was about the fundamental right to
homosexual sodomy. See Bowers, 478 U.S. at 199 (Blackmun, J., dissenting).
Clearly, the right to choose one's life partner is quintessentially the
kind of decision which our culture recognizes as personal and important. .
. .
The relevant question is not whether same-sex marriage is so rooted in our
traditions that it is a fundamental right, but whether the freedom to
choose one's own life partner is so rooted in our traditions.
Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at
*4 (unpublished order) (Alaska Super. Ct. Feb. 27, 1998). By asking
whether there is a fundamental right to same-sex marriage, the plurality
fails "to appreciate the extent of the liberty at stake." Lawrence, 539
U.S. at 567.
The plurality's conclusion that there is only a right to marry a person of
the opposite sex also contradicts the broad application of the right to
marry by the Supreme Court as well as other courts. Contrary to the
plurality's interpretation here, those cases support a broad right to marry
the person of one's choice. Over 50 years ago, long before the Supreme
Court declared bans on interracial marriage unconstitutional in Loving, the
Supreme Court of California held that "the right to marry is the right to
join in marriage with the person of one's choice . . . restrict{ing} the
scope of his choice . . . thereby restricts his right to marry." Perez, 32
Cal. 2d at 715 (holding that an antimiscegenation statute unjustifiably
impaired the fundamental right to marry, not the fundamental right to
interracial marriage).
In Loving, decided in 1967, the Supreme Court made it clear that the right
to marry included the right to marry the person of one's choice, not the
person of one's choice within a class of people that society thought should
intermarry or even who had historically done so. Loving, 388 U.S. at 12.
The Court did not analyze the right to interracial marriage, but instead
discussed marriage generally, as "one of the 'basic civil rights of man,'
fundamental to our very existence and survival." Id. (quoting Skinner, 316
U.S. at 541). The Court concluded that "the freedom to marry, or not
marry, a person of another race resides with the individual and cannot be
infringed by the State." Id. Notably, this court has itself characterized
Loving as protecting individuals' "ability to marry the person of their
choosing." Bremerton v. Widell, 146 Wn.2d 561, 580, 51 P.3d 733 (2002)
(Madsen, J.) (emphasis added).26
The Supreme Court later noted that its opinion in Loving "could have rested
solely on the ground that the statutes discriminated on the basis of race
in violation of the Equal Protection Clause. But the Court went on to hold
that the laws arbitrarily deprived the couple of a fundamental liberty
protected by the Due Process Clause, the freedom to marry." Zablocki, 434
U.S. at 383 (citing Loving, 388 U.S. at 11-12). The Zablocki Court
restated the Loving Court's depiction of the right at issue--"'one of the
'"basic civil rights of man"'" (quoting Loving, 388 U.S. at 12 (quoting
Skinner, 316 U.S. at 514))--and declared the right to marry to be "of
fundamental importance for all individuals." Zablocki, 434 U.S. at 383-84.
In Turner, decided in 1987, the Supreme Court expanded the right to marry
the person of one's choice by making clear that marriage is not solely
about procreation and therefore should not be limited to couples that can
procreate.27 Its reasoning is particularly instructive here. In declaring
that the fundamental right to marry extended to inmates, the Court reasoned
that "inmate marriages, like others, are expressions of emotional support
and public commitment. These elements are an important and significant
aspect of the marital relationship." Turner, 482 U.S. at 95-96. Moreover,
"marital status often is a pre-condition to the receipt of government
benefits . . . . These incidents of marriage, like the religious and
personal aspects of the marriage commitment, are unaffected by the fact of
confinement" or by inability to independently procreate. Id. at 96. Thus,
the Court focused on the support, commitment, and spirituality behind
marriage, as well as the government benefits and property rights associated
therewith, rather than a capacity to procreate in concluding that the right
to marry extended to inmates. Likewise, the Massachusetts Supreme Judicial
Court recently declared that "it is the exclusive and permanent commitment
of the marriage partners to one another, not the begetting of children,
that is the sine qua non of civil marriage." Goodridge, 440 Mass. at 332.
It is at least erroneous, if not disingenuous, for the plurality to read
the Supreme Court's repeated recognition of the fundamental right to marry
as only a means to further the fundamental right to procreate. Plurality
at 29-31. Rather, the Court has established that "the right to marry is
part of the fundamental 'right of privacy' implicit in the Fourteenth
Amendment's Due Process Clause." Zablocki, 434 U.S. at 384. In Skinner,
another case cited by the plurality, the court stated that "{m}arriage and
procreation are fundamental to the very existence and survival of the
race," but did not necessarily link one to the other. 316 U.S. at 541. In
Loving, the third case cited by the plurality, it is less than clear that
the Court was only referring to procreation when it noted that "{m}arriage
is one of the 'basic civil rights of man,' fundamental to our very
existence and survival." 388 U.S. at 12 (quoting Skinner, 316 U.S. at
541). Any reference to procreation is also glaringly absent in the court's
earlier observation that, "{t}he freedom to marry has long been recognized
as one of the vital personal rights essential to the orderly pursuit of
happiness by free men." Id.
Moreover, one of the Supreme Court's most noted opinions for describing the
importance of the right to marry held that the right of marital privacy
included the right not to conceive children and overturned a state's ban on
contraceptives. Griswold, 381 U.S. at 486. In acknowledging the unique
qualities that render marriage a fundamental right worth protecting, the
Griswold court omitted any reference to procreation or even the gender of
the spouses. "Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living,
not political faiths; a bilateral loyalty, not commercial or social
projects." Id. As a result, I conclude that there is nothing inherent in
the fundamental right to marry that would justify a law that excludes same-
sex couples from also enjoying that right.
In addition to implicating the fundamental right to marry, Supreme Court
precedent reveals that the liberty to construct and define one's own family
is also at issue in this case. The Supreme Court has held that:
Our law affords constitutional protection to personal decisions
relating to marriage, procreation, contraception, family relationships,
child rearing, and education. . . . These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment.
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791,
120 L. Ed. 2d 674 (1992) (emphasis added). Our Washington Constitution is
at least as protective of our citizens' due process rights as the
Fourteenth Amendment in this context.
This court cannot ignore that "freedom of personal choice in matters of
marriage and family life is one of the liberties protected" by due process.
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S. Ct. 791, 39
L. Ed. 2d 52 (1974). The Fourteenth Amendment precludes government
intrusion into the deeply personal realms of consensual adult expressions
of intimacy and the choice of one's intimate partner. Lawrence, 539 U.S.
at 577-78. These most personal and intimate choices are at the heart of
the right to privacy.
The Constitution protects individual privacy in personal decisions relating
to marriage. Lawrence, 539 U.S. at 574; see also Griswold, 381 U.S. at 484-
85 (whether or not to procreate); Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct.
705, 35 L. Ed. 2d 147 (1973) (whether to bear a child); Lawrence, 539 U.S.
at 578 (among consenting adults, with whom to engage in sexual conduct);
Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278-79, 110 S. Ct. 2841,
111 L. Ed. 2d 224 (1990) (whether to refuse medical treatment). No choice
could be more private, and indeed fundamental, than the choice of marital
partner. As a result, this case falls at the intersection between the
fundamental right to marry and the fundamental liberty interest in making
one's own personal decisions relating to intimate partners. Therefore,
this court must consider both the individual's liberty interest in choosing
a marital partner as well as his or her right to marry.
Furthermore, "history and tradition" should not control us where that
history and tradition merely reflect that a popular majority is willing to
denigrate the rights of a minority group. The plurality repeatedly
declares that the history and traditions of the United States and of the
state of Washington do not support acceptance of same-sex marriage
justifying a fundamental right to same-sex marriage. See, e.g., plurality
at 27-28, 31-32. "'{H}istory and tradition are the starting point but not
in all cases the ending point of the substantive due process inquiry.'"
Lawrence, 539 U.S. at 572 (alteration in original) (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 857, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
(1998) (Kennedy, J., concurring)). Although, as the plurality states,
history and tradition might change, we need not wait for a popular majority
to change its view. See plurality at 32. Those involved in writing the
Fifth and Fourteenth Amendments "knew times can blind us to certain truths
and later generations can see that laws once thought necessary and proper
in fact serve only to oppress. As the Constitution endures, persons in
every generation can invoke its principles in their own search for greater
freedom." Lawrence, 539 U.S. at 579.
The plurality claims that the Supreme Court's consideration in Loving of
bans on interracial marriage is distinct from our consideration of bans on
same-sex marriage because "whatever the history and tradition of
interracial marriage had been, by the time Loving was decided, it had
changed." Plurality at 27. But how much had history and tradition really
changed? In 1958, just nine years before Loving, a Gallop Poll showed that
96 percent of white Americans opposed interracial marriage between blacks
and whites. Nicholas D. Kristof, Marriage: Mix and Match, N.Y. Times, Mar.
3, 2004, at A23. At the time the Supreme Court held antimiscegenation
statutes unconstitutional, 16 states still had them. Loving, 388 U.S. at 6
n.5. Even five years after Loving, in 1972, another Gallop Poll reported
that 75 percent of all white Americans opposed interracial marriage between
blacks and whites. Charlotte Astor, Gallup Poll: Progress in Black/White
Relations, But Race is Still an Issue, Electronic J. U.S. Info. Agency,
Aug. 1997, gallup.htm. Yet today we understand antimiscegenation laws to
be pure ignorance, discrimination, and hate.
We should not have to go through the same painful process of waiting for
popular opinion to catch up with the constitution to declare denial of the
right to marry unconstitutional. It was not the change in popular
perception that created a fundamental right to marry the person of one's
choice or caused the Supreme Court to recognize that right in Loving. See
Perez, 32 Cal. 2d at 736 (Carter, J., concurring) ("{T}he statutes now
before us never were constitutional."). The fact that many states had
repealed their antimiscegenation statutes at the time of Loving may have
made the Court's decision less controversial, but the number of states with
laws against interracial marriage was not the basis for the decision. If
anything, antimiscegenation statutes and their demise in Loving should tell
us that we should not rely solely on history to determine the extent of a
fundamental right where historically that right has been denied. See
Goodridge, 440 Mass. at 328 ("As it did in Perez and Loving, history must
yield to a more fully developed understanding of the invidious quality of
the discrimination.").
Historical ignorance and discrimination cannot be used, as the plurality
does, as an excuse for continued denial of the fundamental right to marry
and the liberty interest in choosing an intimate partner. See plurality at
27 ("{T}here is no history and tradition of same-sex marriage in this
country, and the basic nature of marriage as a relationship between a man
and a woman has not changed."). The plurality refuses to extend the
fundamental right to marry to same-sex couples because "community standards
at this time do not show a societal commitment to inclusion of same-sex
marriage as part of the fundamental right to marry."28 Plurality at 32.
But popular opinion cannot dictate our interpretation of the constitution--
"{a} citizen's constitutional rights can hardly be infringed simply because
a majority of the people choose that it be." Lucas v. Forty-Fourth Gen.
Assembly of Colo., 377 U.S. 713, 736, 84 S. Ct. 1459, 12 L. Ed. 2d 632
(1964), aff'd in part and vacated in part on other grounds, 379 U.S. 693,
85 S. Ct. 715, 13 L. Ed. 2d 699 (1965). As the Goodridge court noted,
"history cannot and does not foreclose the constitutional question." 440
Mass. at 320. "If the question whether a particular act or choice is
protected as a fundamental right were answered only with reference to the
past, liberty would be a prisoner of history." Note, Litigating the
Defense of Marriage Act: The Next Battleground for Same-Sex Marriage, 117
Harv. L. Rev. 2684, 2689 (2004).
Based upon the historical recognition of the fundamental right to marry and
the Supreme Court's continued broad protection of that right, I would hold
that the fundamental right to marry extends to same-sex couples.29 Indeed,
"the right to marry means little if it does not include the right to marry
the person of one's choice." Goodridge, 440 Mass. at 327-28. Because
DOMA's denial of same-sex couples' right to marry is not rationally related
to any legitimate state interest, it also necessarily cannot be narrowly
tailored to effectuate a compelling state interest. Therefore, DOMA's
denial of these 19 couples' fundamental right to marry arbitrarily denies
them privileges associated with that right in violation of article I,
section 12 of the Washington Constitution. Furthermore, DOMA's denial of
their fundamental right to marry deprives them of liberty without due
process in violation of article I, section 3 of the Washington
Constitution.
Many individuals and organizations have prophesized the downfall of society
as we know it if and when Washington recognizes that the fundamental right
to marry extends to same-sex couples. See, e.g., concurrence at 4 ("To
declare {DOMA} unconstitutional would declare marriage as Washington
citizens have always known it, unconstitutional."). If this court were to
conclude that DOMA is unconstitutional, that decision would not declare the
institution of civil marriage unconstitutional. Even without DOMA,
opposite-sex couples would continue to marry, procreate, and parent, if
they so choose, and continue to further the interests identified by the
State. This fact alone underscores the lack of a rational relationship
between DOMA and those identified interests.
Rather than altering marriage for opposite-sex couples, the changes that
will transpire when this court deems DOMA unconstitutional will occur in
the lives of the same-sex couples who seek legal recognition of their
relationship through civil marriage. Same-sex couples will be allowed to
marry and to partake of the more than 423 legal, social, and financial
benefits and obligations that are currently denied to them because they
cannot marry. By determining that DOMA wrongfully excludes these couples
from enjoying the fundamental right of marriage, this court would only be
performing its proper function of judicial review. "The history of
constitutional law 'is the story of the extension of constitutional rights
and protections to people once ignored or excluded.'" Goodridge, 440 Mass.
at 339 (quoting United States v. Virginia, 518 U.S. 515, 557, 116 S. Ct.
2264, 135 L. Ed. 2d 735 (1996)).
Debate has also ensued over what remedy this court should employ if it were
to void DOMA. Both the Andersen and Castle plaintiffs request a
declaratory judgment that RCW 26.04.010 and RCW 26.04.020(1)(c) are
unconstitutional. Additionally, the Andersen plaintiffs specifically
request that this court order King County to issue marriage licenses to the
couples and affirm the trial court grant of this relief. CP (Andersen) at
907. If this court were to determine that DOMA is unconstitutional, that
determination would not alter the status of marriage as a fundamental right
in the state of Washington unless the United States Supreme Court overrules
itself. The mere fact that DOMA both codifies the right to marry and
simultaneously restricts access to that fundamental right is not a
sufficient reason to continue to uphold those statutes. See, e.g., Dunn v
Blumstein, 405 U.S. 330, 333, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972)
(decision finding a section of the Tennessee Constitution and two Tennessee
statutes unconstitutional because they granted the fundamental right to
vote only to individuals residing in Tennessee for more than 12 months).
Although this court's determination that DOMA is unconstitutional would be
a permissible check on the authority of the legislature, this court lacks
the authority to rewrite this state's marriage statutes. See Wash. Const.
art. II, sec. 1; In re Parentage of C.A.M.A., 154 Wn.2d 52, 69, 109 P.3d
405 (2005) ("We show greater respect for the legislature by preserving the
legislature's fundamental role to rewrite the statute rather than
undertaking that legislative task ourselves."). Therefore, this court
should hold that DOMA is unconstitutional because the fundamental right to
marry extends to same-sex couples but leave remedying the marriage statutes
to the legislature.
CONCLUSION
Because DOMA unjustifiably denies the fundamental right to marry to
Washington's gay and lesbian citizens, I would hold that it violates
article I, section 12 and article I, section 3 of the Washington
Constitution and affirm the
two trial courts.30 Unfortunately, the plurality and concurrence are
willing to turn a blind eye to DOMA's discrimination because a popular
majority still favors that discrimination. "{W}e must be ever on our
guard, lest we erect our prejudices into legal principles." New State Ice
Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L. Ed. 747 (1932)
(Brandeis, J., dissenting). I dissent.
AUTHOR:
Justice Mary E. Fairhurst
WE CONCUR:
Justice Tom Chambers
Justice Susan Owens
Justice Bobbe J. Bridge
1 Although the title of the Castle court's memorandum opinion refers to
RCW 26.02.010 and RCW 26.02.020, no such statutes exist. See CP at 93.
The opinion later correctly refers to RCW 26.04.010 and RCW 26.04.020,
which are the statutes at issue in the case. See CP at 95.
2 Despite the plurality's attempts to distance itself from the
concurrence, the plurality itself acknowledges that the concurrence 'merely
repeats the result and much of the reasoning of the {plurality's} decision
on most issues.' Plurality at 5. In truth, the concurrence fills the
noticeable, and presumably intentional, omissions in the plurality's
reasoning. The plurality notably avoids any real discussion of the State's
interest in excluding same-sex couples from civil marriage and focuses
exclusively on the State's interest in marriage for opposite-sex couples.
See, e.g., plurality at 41 ('{R}earing children in a home headed by their
opposite-sex parents is a legitimate state interest furthered by limiting
marriage to opposite-sex couples because children tend to thrive in
families consisting of a father, mother, and their biological children.').
The concurrence, on the other hand, more directly addresses the necessarily
discriminatory correlative of that argument. See, e.g., concurrence at 40
('Direct comparisons between opposite-sex homes and same-sex homes further
support the former as a better environment for children.'). As Justice
Antonin Scalia noted in his dissent in Lawrence v. Texas, 539 U.S. 558,
601, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), ''preserving the
traditional institution of marriage' is just a kinder way of describing the
State's moral disapproval of same-sex couples.' (Scalia, J., dissenting
(quoting id. at 585 (O'Connor, J., concurring)). As much as the plurality
would like to deny the discriminatory impact of its decision to uphold an
unconstitutional law, that is the plurality's result.
3 The plurality and concurrence also incorrectly assert that by analyzing
whether the fundamental right to marry extends to a class of individuals to
whom it historically has been denied that I am somehow creating a new
fundamental right. See plurality at 32; concurrence at 23-24. United
States Supreme Court precedent has taught us again and again that framing
the inquiry into a constitutional right in such a narrow way misunderstands
and undermines the value of the right at stake. See, e.g., Lawrence, 539
U.S. at 567 (overruling a previous Supreme Court decision that framed the
liberty interest in sexual privacy as whether there was a fundamental right
to homosexual sodomy, which disclosed that Court's 'failure to appreciate
the extent of the liberty at stake.').
4 What is at issue here is solely civil marriage defined by RCW
26.04.010(1) as a 'civil contract.' Granting same-sex couples the right to
marry has no effect upon religious recognition of marriage or who is
entitled to that recognition.
5 The trial court opinion in Andersen lists 'but a few' examples of such
rights and responsibilities afforded to married persons and the statutes in
which they reside: rights to property and income under the community
property laws (chapter 26.16 RCW); the right to inherit property (chapters
11.04 and 11.28 RCW); court oversight into dissolution of the relationship
and equitable distribution of assets, as well as protection of the best
interests of the children involved (chapter 26.09 RCW); benefits in the
employment arena, such as renewing a deceased spouse's commercial fishing
license (chapter 77.65 RCW), health care services (chapter 48.44 RCW),
retirement benefits (chapter 41.40 RCW), and state taxes (chapter 82.45
RCW); the right to bring wrongful death actions on behalf of one's spouse
(chapter 4.20 RCW); and the right to assert the spousal testimonial
privilege (chapter 5.60.060 RCW). See CP (Andersen) at 881.
6 H.R. Rep. No. 104-664, at *2, *4-6 (1996), reprinted in 1996
U.S.C.C.A.N. 2905, 2906, 2908-10.
7 The federal DOMA, codified at 28 U.S.C. sec. 1738C, provides that:
No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is treated
as a marriage under the laws of such other State, territory, possession, or
tribe, or a right or claim arising from such relationship.
And at 1 U.S.C. sec. 7, defines ''marriage'' as 'a legal union between one
man and one woman as husband and wife' and 'spouse' as 'a person of the
opposite sex who is a husband or a wife.'
8 Among other justifications for denying same-sex couples the right to
marry was moral disapproval: 'Civil laws that permit only heterosexual
marriage reflect and honor a collective moral judgment about human
sexuality. This judgment entails both moral disapproval of homosexuality,
and a moral conviction that heterosexuality better comports with
traditional (especially Judeo-Christian) morality.' H.R. Rep. No. 104-664,
at *15-16, reprinted in 1996 U.S.C.C.A.N. 2919-20 (footnote omitted).
9 DOMA was codified in and amended RCW 26.04.010 and .020.
10 'It is clear that there is no question of legislative intent. . . . The
legislature's intent is to prohibit same-sex marriage as contrary to our
civil law.' CP (Castle) at 96.
11The powers of the legislature are defined, and limited ; and that those
limits may not be mistaken, or forgotten, the constitution is written. To
what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained? . . . It is a proposition too plain to be
contested, that the constitution controls any legislative act repugnant to
it ; or, that the legislature may alter the constitution by an ordinary
act.
. . . .
{A}n act of the legislature, repugnant to the constitution, is void.
Marbury v. Madison, 5 U.S. 137 (1 Cranch), 176-77, 2 L. Ed. 60 (1803); see
also Wash. State Labor Council v. Reed, 149 Wn.2d 48, 62, 65 P.3d 1203
(2003) (Alexander, C.J.) ('The ultimate power to interpret, construe, and
enforce the constitution of this state belongs to the judiciary. . . . This
is so even when that interpretation serves as a check on the activities of
another branch or is contrary to the view of the constitution taken by
another branch.') (citations omitted).
12 For the purposes of the analysis here, I assume, like the plurality,
that article I, section 12 of the Washington Constitution does not give
greater protection than the federal equal protection clause in this
situation. See Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake,
150 Wn.2d 791, 806-10, 83 P.3d 419 (2004) (Grant County II). Although I
would not foreclose the possibility that article I, section 12 provides
greater protection, I do not reach the issue because I would hold that DOMA
fails even rational basis review.
13 Respondents also argue that denial of the right to marry arbitrarily
violates their substantive due process right to liberty. The same rational
basis analysis applies to the same-sex couples' due process claims.
Because DOMA fails rational basis review under the privileges and
immunities clause, it also fails rational basis review under the due
process clause.
14 'The guaranty of 'equal protection of the laws is a pledge of the
protection of equal laws.'' Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942) (quoting Yick Wo v.
Hopkins, 118 U.S. 356, 369, 6 S. Ct. 1064, 30 L. Ed. 220 (1886)).
15 The requirement that a classification have a rational basis dictates
that the issue in this case be framed as whether the exclusion of same-sex
couples from civil marriage is rationally related to a legitimate interest.
The privileges and immunities clause of the Washington Constitution and the
equal protection clause of the federal Constitution require that this court
make this inquiry, otherwise this court would not be able to determine if
the classification was drawn for the purpose of disadvantaging Washington's
gay and lesbian citizens. This court must determine whether allowing
opposite-sex couples and not same-sex couples to marry furthers a
legitimate interest, not merely whether allowing opposite-sex couples to
marry furthers a legitimate interest.
16 The plurality focuses too greatly on the deference afforded by rational
basis review and in doing so, conducts no real analysis at all. 'Read the
constitution, and read it once again, I find no textual support for the
proposition that a usurping legislature may impose an unconstitutional, yet
'doubtful,' legislative act beyond the remedy of judicial review.' Island
County v. Washington, 135 Wn.2d 141, 156, 955 P.2d 377 (1998) (Sanders, J.,
concurring).
17 See e.g., Willoughby v. Dep't of Labor & Indus., 147 Wn.2d 725, 741-42,
57 P.3d 611 (2002) (blanketly rejecting every proposed rational basis for a
statutory bar to disbursing industrial insurance permanent partial
disability benefits to prisoners without statutory beneficiaries who were
unlikely to be released from prison); In re Det. of Brooks, 145 Wn.2d 275,
292, 36 P.3d 1034 (2001) (holding that preventing the subject of a
commitment petition from presenting evidence of less restrictive
alternatives to confinement until after commitment trial bears no rational
relationship to the state's interest in public safety), overruled in part
by In re Det. of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003); DeYoung, 136
Wn.2d at 147-50 (concluding that an eight-year statute of repose for
medical malpractice claims was not rationally related to the State's
interest in protecting insurance companies because the statute would only
reduce insurance claims by 0.2 percent, a relationship that was 'too
attenuated'); Hunter v. N. Mason High Sch., 85 Wn.2d 810, 818-19, 539 P.2d
845 (1975) (holding that nonclaim statutes requiring victims of
governmental torts to give notice of their claims within a short period
after they arise bear no rational relationship to the legislature's goals
of ensuring that large governmental institutions are notified of claims or
facilitating governmental institution's budget planning); see also State v.
Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999); Simpson v. State,
26 Wn. App. 687, 695, 615 P.2d 1297 (1980).
18 It is far from clear that those goals are legitimate state interests to
begin with, but because I find that DOMA is not rationally related to any
proffered state interest, I do not dissect them.
19 The only rational basis the plurality proposes to support denying same-
sex couples the right to marry is 'the need to resolve the sometimes
conflicting rights and obligations of the same-sex couple and the necessary
third party in relation to a child.' Plurality at 39. Although the
meaning of that statement is unclear, the plurality appears willing to deny
same-sex couples the right to marry because there are often third parties
involved in conceiving children, which creates conflicting and confusing
rights and relationships. But infertile opposite-sex couples also involve
third parties in conceiving or adopting children, and yet they are still
allowed (and apparently encouraged) to marry. Additionally, this court's
recent decision in In re Parentage of L.B., concluding that a lesbian
mother who was biologically unrelated to her child could establish de facto
parent status undercuts this reasoning. 155 Wn.2d 679, 711-12, 122 P.3d 161
(2005).
Furthermore, denying same-sex couples the right to marry does not make
resolving individuals' conflicting parental rights and obligations easier.
If anything, denying same-sex parents the right to marry would seem to make
resolving parental rights and obligations more difficult. This reason
certainly is not a rational basis for denying same-sex couples the right to
marry.
20 The trial court in Andersen poignantly defined the issue here as
'whether barring committed same-sex couples from the benefits of the civil
marriage laws somehow serves the interest of encouraging procreation.' CP
(Andersen) at 894.
21 This reasoning accords with that of other state courts that have found
no rational relationship between denial of the right to marry to same-sex
couples and any legitimate state interest. See, e.g., Goodridge, 440 Mass.
at 341 ('The absence of any reasonable relationship between, on the one
hand, an absolute disqualification of same-sex couples who wish to enter
into civil marriage and, on the other, protection of public health, safety,
or general welfare, suggests that the marriage restriction is rooted in
persistent prejudices against persons who are (or who are believed to be)
homosexual.'); Baker, 744 A.2d at 886 ('{W}e conclude that none of the
interests asserted by the State provides a reasonable and just basis for
the continued exclusion of same-sex couples from the benefits incident to a
civil marriage license under Vermont law.'); In re Coordination Proceeding,
Special Title {Rule 1550(c)}, Marriage Cases, No. 4365, 2005 WL 583129, at
*2 (Cal. Super. Ct. Mar. 14, 2005) (unpublished order) (concluding that
state statutes defining marriage to be between a man and a woman violated
equal protection under either a rational basis or strict scrutiny
analysis); People v. Greenleaf, 5 Misc. 3d 337, 780 N.Y.S.2d 899, 901
(Just. Ct. 2004) ('I find that 'tradition' is not a legitimate state
interest, and that prohibiting same-sex couples from marrying is not
rationally related to furthering the state's legitimate interest in
providing a favorable environment for procreation and child-rearing.');
People v. West, 4 Misc. 3d 605, 780 N.Y.S.2d 723, 725 (2004).
22 '{T}he concept is a living one, that it guarantees basic rights, not
because they have become petrified as of any one time, but because due
process follows the advancing standards of a free society as to what is
deemed reasonable and right.' Poe v. Ullman, 367 U.S. 497, 518 n.9, 81 S.
Ct. 1752, 6 L. Ed. 2d 989 (1961) (Douglas, J., dissenting).
23 The concurrence takes this argument one step further and argues that the
'United States Supreme Court has directly rejected the argument that a
fundamental right to marry extends to same-sex unions' by citing 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). Concurrence at 24. It goes
without saying that the Supreme Court's dismissal 'for want of substantial
federal question' does not settle the substantive issues of a case and does
not stand for the proposition that the concurrence asserts. Baker, 409
U.S. 810.
Additionally, the concurrence implies that the Court also settled the issue
in Lawrence. Concurrence at 24-25. However, the Lawrence majority only
acknowledged that that case did not present the issue of 'whether the
government must give formal recognition to any relationship that homosexual
persons seek to enter.' 539 U.S. at 578. Similarly, Justice Sandra Day
O'Connor's statement in her concurrence that 'other reasons exist to
promote the institution of marriage beyond mere moral disapproval of an
excluded group' was mere dicta and did not address whether those interests
were rationally related to any law. Id. at 585 (O'Connor, J., concurring).
Thus, neither of the cases cited by the concurrence guides this court's
determination.
24 An Alaska superior court declaring that the fundamental right to
marry extends to same-sex couples discussed the error of too narrowly
defining the right at stake:
When the Supreme Court of Hawaii in Baehr v. Lewin, 74 Haw. 530, 852 P.2d
44 (Hawaii 1993), addressed same-sex marriage, it noted that:
'{W}e do not believe that a right to same sex marriage is so rooted in the
traditions and collective conscience of our people that failure to
recognize it would violate the fundamental principles of liberty and
justice which lie at the base of all our civil and political institutions .
. . 852 P.2d at 57.'
The Hawaii court could reach such a conclusion because of the question it
chose to ask. It is self-evident that same-sex marriage is not 'accepted'
or 'rooted in the traditions and collective conscience' of the people. Were
this not the case, Brause and Dugan and the plaintiffs in Baehr would not
have had to file complaints seeking precisely this right.
Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at
*4 (unpublished order) (Alaska Super. Ct. Feb. 27, 1998).
25 The dissenting opinions in Bowers foreshadowed that conclusion. See,
e.g., Bowers, 478 U.S. at 199 (Blackmun, J., dissenting) ('This case is no
more about 'a fundamental right to engage in homosexual sodomy,' as the
Court purports to declare, . . . than Stanley v. Georgia, 394 U.S. 557{, 89
S. Ct. 1243, 22 L. Ed. 2d 542} (1969), was about a fundamental right to
watch obscene movies, or Katz v. United States, 389 U.S. 347{, 88 S. Ct.
507, 19 L. Ed. 2d 576} (1967), was about a fundamental right to place
interstate bets from a telephone booth. Rather, this case is about 'the
most comprehensive of rights and the right most valued by civilized men,'
namely, 'the right to be let alone.'' (quoting Olmstead v. United States,
277 U.S. 438, 478, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J.,
dissenting)).
26 Despite the plurality's and concurrence's suggestions to the contrary,
neither this court nor the United States Supreme Court has ever described
this right as the right to choose to marry a person of the opposite sex.
Plurality at 32 ('Federal decisions have found the fundamental right to
marry at issue only where opposite-sex marriage was involved.');
concurrence at 23 ('Every United States Supreme Court decision concerning
the right to marry has assumed marriage as the union of one man and one
woman.').
27 Even if the right to marry is somehow linked to fundamental rights
of procreation, childbirth, and child rearing, as the plurality espouses,
that link cannot be a basis to deny the right to marry to same-sex couples
because we allow them to adopt and rear children. The same liberty and
privacy interests historically recognized in decision making pertaining to
the family is at stake here.
28 Although I do not believe that this court's determination of whether
DOMA is unconstitutional is dependent on whether there is a 'societal
commitment' to same-sex marriage (plurality at 32), there is evidence that
attitudes toward same-sex marriage are shifting. Recent polls indicate
that only a slim majority of Americans (51 percent) now oppose legalizing
same-sex marriage, down from 63 percent in February 2004. Survey Report,
Less Opposition to Gay Marriage, Adoption and Military Service, The Pew
Research Center for the People and the Press, Mar. 22, 2006, at 1,
available at .
29 As this opinion clearly states, I reach this conclusion based on my
reading of the United States Supreme Court's recognition of marriage as a
fundamental right and the Washington Constitution's protection of that
right through the privilege and immunities and due process clauses.
Suggestions by the plurality and the concurrence that I reach this
determination by 'judicial fiat' or based on 'personal views' are
unsuccessful attempts to deflect attention from the discriminatory impact
of unconstitutional statutes. Concurrence at 29; plurality at 3.
In so concluding, I join the other state courts that have held that the
fundamental right to marry includes the right to choose a marriage partner
of the same sex. See, e.g., Goodridge, 440 Mass. at 327-28; Brause, 1998
WL 88743, at *4-5 (asking whether freedom to choose one's life partner is
so rooted in our history and traditions that it is a fundamental right, and
concluding that 'choice of a life partner is personal, intimate, and
subject to the protection of the right to privacy' such that government
intrusion into that right is subject to strict scrutiny). The plurality
points to other courts that have come to the opposite conclusion. See
plurality at 28. The plurality is correct that some jurisdictions have
refused to extend the fundamental right to marry to same-sex couples, but
they incorrectly imply that all courts recently considering the issue have
done so--courts across the country and even within the same states are
coming to different conclusions on these related issues. See, e.g., Deane
v. Conaway, 2006 WL 148145 (Md. Cir. Ct. 2006) (holding that Maryland's
marriage statute unconstitutionally discriminated on the basis of sex and
was void) (unpublished opinion).
30 Because I would find DOMA unconstitutional on those two, independent
bases, I do not address the applicability of article I, section 7 or the
ERA, nor do I consider whether strict scrutiny is appropriate under article
I, section 12 because respondents constitute a suspect class.
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