Yesterday the Washington Supreme Court ruled on the constitutionality of the state’s Defense of Marriage Act. Since I am still passing as a lawyer, I suppose I should take this opportunity to weigh into my views on the court’s decision.
First, a note with regard to my personal views on gay marriage – I am totally unsure of what I think anymore. I honestly am not aroused with strong passion on either side of the issue. From a religious point of view, I believe that marriage is ordained to be between a man and a woman, but since I generally believe religious views should not have any place in determining public policy, I am more restrained in my views about what the government should do. Generally, I believe that people should have equal rights, and so I believe that some kind of civil union status seems appropriate. The fact is people should be able to determine for themselves who they wish to enjoy rights to their estate, to make medical decisions, and so forth (from a practical sense – people making wills, powers of attorneys and so forth can handle many of those concerns In fact, my view used to be that I thought the government should only sanction civil unions and then it is up to appropriate religious bodies and so forth to call the relationship a “marriage” or whatever, because from a civil law standpoint, that would treat people equally. But then I realized that would be impossible to impliment because it require a vast reworking of all family laws in every jurisdiction in the country. My solutions for problems are always impractical (I will later post my solution to America’s oil dependency).
So, since my personal views on the subject are so disjointed these days, what I will post is my view of the Washington Supreme Court ruling. Yesterday, I tried to read the plurality decision, the concurrence, the dissent, and the concurrences to the dissent. All in all, it was just too long, but I think that I got through enough to understand the gist of the constitutional law ruling. First of all, I generally have to say that the plurality decision which upheld DOMA, was clearly centered in existing law. Based on my law school and bar exam knowedge of constitutional law, the plurality opinion made sense. There is no appeals court that has found that homosexuals are entitled to strict scrutiny protections or that there is a fundamental right to same sex marriage on the basis of the federal constitution. the Massachusetts ruling based its decision on its state constitution, and the Washington State Constitution’s privileges and immunities clause only applies to minorities who are treated favorably (ie favoritism), not the other way around.
Second, I think that the court was correct in applying rational basis review to the legislation. This is the part of the opinion where I think most commentators get the ruling wrong – some commentators state that the court found that marriage between a man and a woman only is valid because of the procreative value of marriage between heterosexual couples. So basically, these commentators conclude that the court was ruling that procreation is what makes marriage between a man and a woman entitled to protection. Therefore, what about heterosexual couples that don’t/can’t produce offspring? Well, that is not what the court ruled at all. What the court said is that the legislature grounded their legislation on the basis of protecting children and the inherent benefit of reserving special rights to marriage because it is a relationship that facilitates the procreation of offspring, and that was rational basis for the state’s interest in designing DOMA. Rational basis review isn’t concerned with whether the legislation is over/underinclusive (meaning that just because not all married couples don’t have kids, and because some kids are born outside of marriage doesn’t mean the legislation isn’t valid). It is only whether the legislature came up with a rational basis. Granted, as pointed out by the court, some of the legislators who sponsored the bill were bigots and clearly were motivated by bias against same sex couples. However, the state succeeded, according to the court, in showing the legislative intent was not motivated by bias.
The first thing I have to say about the dissents – Justice Bridges lost my respect when the dissent actually cited to Brokeback Mountain and Will and Grace. Pop culture in law decisions is never a good idea. The dissent also quoted a BYU Journal of Public Law article, which I found humorous, on a personal level. The dissents, taken as a whole, were extremely passionate. I don’t think passion is a bad thing (it is what guides what I do every day), but at the same point in time, in the legal climate that we live in, I do believe there is absolutely a value in the judiciary not ruling based on their passions, and grounding their opinions in settled law. Why? Because, for too long have conservatives been blaming liberals for “judicial activism” overruling the will of the people. Now, I think that conservative judges are more guilty of this, particularly on a national level (the present conduct of the Supreme Court, as a perfect example). I want conservative judicial activism to take the spotlight (in rolling back environmental legislation, and other areas where conservatives have run completely wild in rolling back important legislation and regulation), and I want people to stop blaming all of America’s problems on supposed “liberal” judges. To me, the dissents read exactly like what some paint liberal activist judges to be – where the judge has an opinion on what the outcome to be and will grasp at any legal straw to get there. They resorted to citing trial court and unpublished opinions from other states to get there. It just isn’t what a supreme court opinion is supposed to be.
That being said, it is a legislative issue. It has to be. I am all about the 14th amendment and extending civil rights to people. It is one of the things that made the Supreme Court in the 1960s so great. But those same issues are not before us today. I think that it is compelling that in a state like Washington, we have been able to pass real anti-discrimination laws. I think that legislatively, there are not the same barriers that existing in the 1960s. I haven’t seen anything yet that has persuaded me that the state doesn’t have some interest in regulating marriage. If the state does have some interest in regulating it, then to me that makes it fertile grounds for legislation.
This is long and disjointed, because as I said, I don’t really know what I think on this topic anymore. I just felt the need to say something.

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