As troubling as the New York high court's ruling against same-sex marriages a few weeks ago was, the Washington decision today is even more shocking. Like New York, Washington has added to its civil rights law sexual orientation as a protected class. The Washington state constitution also includes an equal rights amendment which specifically bars discrimination based on sex. Against this backdrop, five justices of the state's high court concluded that gay and lesbian persons are not members of a suspect class.
Unbelievably, the Court used enactment of non-discrimination laws covering sexual orientation as an argument against treating gays and lesbians as a suspect class. This the court said was evidence that gays and lesbians are not powerless; instead, they are exercising increasing political power according to the court.
The court also attempted to distinguish sexual orientation from other classifications. While conceding that there had been a long history of discrimination against persons based on their sexual orientation, the court's majority found that the gay and lesbian plaintiffs had failed to demonstrate that sexual orientation was an immutable, not behavioral characteristic. You've got to be kidding! The court might as well have said that homosexuality is a mental disorder. It is simply unacceptable that any reasonable person could continue to assert that sexual orientation is chosen, not acquired at birth. But that's exactly what this court concluded.
Once the court reached that conclusion, it need only apply the highly deferential rational basis test for determining whether DOMA past constitutional muster. Applying its rational basis standard, the Court looked at the narrower question of whether the state had a legitimate interest in allowing only opposite-sex couples the right to marry as opposed to the broader question of whether the state's claimed interest was advanced by denying the right to marry to same-sex couples, which the dissenting justices urged for purposes of this analysis.
It all becomes very simple then for the court under this narrower view. Only opposite-sex couples can procreate and thereby ensure the survival of the human race , and the well-being of the children is promoted where children are raised in the homes of their biological parents. The state can thus meet the very low bar required for demonstrating its legitimate interest in enacting DOMA--it bears a reasonable relationship to the state's interest in promoting procreation and child-rearing.
It should be explained that the Washington court interprets its state equal protection clause as the antithesis of its counterpart in the U.S. Constitution. While the federal equal protection clause secures equality of treatment by prohibiting hostile discrimination against a class of persons, Washington's equal protection clause secures equality of treatment by prohibiting undue favor for a specific minority group the court explained. Because DOMA, in effect, confers a benefit on the majority group, equal protection for state constitutional purposes is not implicated the court reasons.
Marriage the court's majority maintains is a fundamental constitutional right. It's a fundamental right conferred only on opposite-sex couples though. The court explains this by ascribing legal significance to the so-called "community standard", which instructs the court that there is no societal commitment to relationships between same-sex couples as there historically has been to opposite-sex couples. And while the state's equal rights amendment does prohibit discrimination on the basis of sex to be sure, denying the right to marry to same-sex couples is not a form of discrimination on the basis of sex the court assures us.
In one of the dissenting opinions, Justice Mary Fairhurt couldn't contain her displeasure with the majority's decision. "Unfortunately, the (majority) are willing to turn a blind eye to DOMA's discrimination because a popular majority still favors that discrimination," she wrote. And that really is what it all boils down to in the final analysis.
To say the court's decision is a disappointment is an understatement. Gay marriage advocates were confident of victory in the Washington court if nowhere else. The AP shares the reaction of an openly gay legislator:
"There aren't words to describe how hurt people in the gay and lesbian community are. There's a lot of tears and a lot of anger right now. Emotion is raw," said state Rep. Ed Murray, a Seattle Democrat and one of four openly gay state lawmakers.
There's another big decision pending in New Jersey, but after the disappointments in New York and Washington, there is little hope of a favorable decision there. In these decisions, it strikes me that the courts do a lot of hand-ringing in their opinions. We know it's not right, but there's nothing we can do about it. It's always been that way. It's the will of the majority. Well, once upon a time it was the will of the majority that institutionalized racism against African-Americans was acceptable. Many of the most important battles in the civil rights movement were won in the court room in the face of opposition from the prevailing majority view. Those judges who rendered those decisions placed a higher value in promoting the greater cause of equality over bowing to the wishes of the majority. It's unfortunate that our judiciary has become so politicized that it cannot muster the courage to give meaning to the most important protections in our constitution.