Gay marriage bans do not violate constitutional due process, the
Washington State Supreme Court ruled today. The Court overturned two different lower court decisions which declared the ban on gay marriage unconstitutional.
Under federal constitutional law, when legislation creates a class of persons treated different from others, the Court looks first to determine if that differently-treated class is a "suspect class" (mainly, minority classes) or if the activity proscribed involves a "fundamental right". If the Court finds either a suspect class or a fundamental right is at issue, then the legislation is reviewed under a "strict scrutiny" standard. This is the most rigorous standard applied in the review of legislation and, almost always, that standard results in an invalidation or severe restriction on the legislation at issue.
If a Court determines that no fundamental right or suspect class is involved, they are free to apply what is called the "rational basis" test. Under that test, the legislation merely needs to be reasonably related to some legitimate state interest, and it is validated. More often than not, application of the rational basis test results in the Court upholding the constitutionality of the law at issue.
So the classification of the right involved, or the class of persons affected, often is crucial for the purposes of challenging or defending legislation claimed to be unconstitutional.
This brief diversion for arcane constitutional analysis being necessary only to put into context the enormity of what the Supreme Court of Washington has decided and how wrong it was.
The Court determined that homosexuals and lesbians are not a "suspect class" and that same-sex marriage was not a fundamental right. They then declared that the ban on gay marriage was rationally related to the State's asserted "legitimate interest".
What was that interest? Let the Court explain:
The State contends that procreation is a legitimate government interest justifying the limitation of marriage to opposite-sex couples. The State reasons that partners in a marriage are expected to engage in exclusive sexual relations with children the probable result and paternity presumed. The State reasons that no other relationship has the potential to create, without third party involvement, a child biologically related to both parents, and the legislature rationally could decide to limit legal rights and obligations of marriage to opposite-sex couples. The legislature could also have found that encouraging marriage for opposite-sex couples who may have relationships that result in children is preferable to having children raised by unmarried parents.
There you have it -- procreation. That, the State of Washington declares, is one of the legitimate state interests which led to the Washington version of the Defense of Marriage Act.
The Court makes a play at dealing with the plaintiffs' (several dozen in the two combined cases) rejoinders that the State's purported interests are silly on their face -- nothing requires straight couples to have children (or -- as many of us who have experienced long marriages can attest -- sex); nor is there anything to prohibit procreation and child rearing outside marriage. No one prohibits the elderly or the sterile to marry -- indeed, it would be unconstitutional to prohibit couples from using birth control or having vasectomies. You can come up with long list of similar responses on your own.
To all of that, the majority opinion basically says, well, nothing of any substance. This is the sum and substance of the Court's response to the, naturally sputtering, incredulity of the plaintiff's on the procreation argument:
But . . . marriage is traditionally linked to procreation and survival of the human race.
I'm not kidding or overstating here -- go read
the opinion -- that
really is how the Court deals with the crucial issue of whether the State has articulated a legitimate interest. "Because it's always been that way". That is presumptive of the outcome because if the State has gay marriage, then the argument evaporates. It is like saying that marriage has always traditionally been to perpetuate and protect the integrity of the races -- when interracial marriages were prohibited. (In fact, that was exactly one of the arguments made by States and courts in upholding the miscegenation laws which over a third of the States had on their books as late as 1967 when the issue finally came to the
Supreme Court of the United States for the first time.)
But neither the State nor the Court were done, there is also the all-important issue of "child-rearing", on which the State alternatively hangs it's
hood hat:
The State also argues that rearing 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.
Hoo-boy. So, what's next, a state law taking children away from a mother who loses her husband in some senseless, stupid, foreign war that resulted from a series of lies and misdirection, and giving them to a "real" family?
The argument was so weak that a third-grader with ADD could have poked Hummer-sized holes in it during recess while jumping rope. But we over-estimate the Washington State Supreme Court and the State legislature. Here's what the Court had to say in rejecting the, naturally smirking plaintiffs', arguments about the State's purported interest:
But given the rational relationship standard and that the legislature was provided with testimony that children thrive in opposite-sex marriage environments, the legislature acted within its power to limit the status of marriage. That is, the legislature was entitled to believe that providing that only opposite-sex couples may marry will encourage procreation and child-rearing in a "traditional" nuclear family where children tend to thrive. We reiterate that the rational basis standard is a highly deferential standard.
No, no, no, no! What you are supposed to be doing is deciding in the first place if any legitimate state interests are articulated -- instead you simply assume that they are legitimate!!!Sorry, just had to take a break to yell at my computer screen like it was Fox News on a Sunday morning.
So, essentially what the Court said was, well the State got some ya-hoos to come up and testify how children are better off with straight mommies and daddies and they chose to believe them so that's all okay.
This is a prime example of what an "activist" court really is and how it works.
The Court first mis-defines the issue by asking if the right to a "
same-sex" marriage is a fundamental right. But putting it in that context the court pre-decides. That is not a far stretch from asking if a "mixed-race" marriage is a fundamental right. "
Marriage" is a fundamental right
period.
If the Court had honestly stated that issue, and admitted that a fundamental right was involved, it would have made the remainder of the opinion look a whole lot less contorted.
After going off wrong by refusing to correctly identify the right at stake, the Court then compounds that error by offering absolutely no analysis of whether the purported state interests were legitimate interests when it came to the regulation of marriage licenses, or whether those purported interests were pretextual, and again in the utter refusal to engage in a real evaluation of the rational relationship between the stated purpose and the legislation itself.
Some of these
plaintiff-couples had been together for decades, many had children. Now they get to go home and tell those children that their parents cannot marry because the State of Washington and the Supreme Court of Washington decided that the children are better off with a "real" family.
This is odious. Had the Washington Supreme Court been more honest, more talented, and more far-sighted, they would have done well to adapt the closing words of the 14th Chief Justice of the United States -- a Republican, by the way -- in
Loving v. Virginia:
Marriage is one of the "basic civil rights of man" . . . . To deny this fundamental freedom on so unsupportable a basis as the [sexual] classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious [ ] discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another [sex] resides with the individual and cannot be infringed by the State.
for the quotes.
-- formed in 1902, the world's oldest society of professional anthropologists and publisher's of the leading journal in the field -- had
