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Wednesday, July 26, 2006

WA Same-Sex Marriage Case Fails

I'm busy, but Volokh has a post here. You can find the decision, concurrences and dissents on this page. It's Anderson V King County. The opinion itself is here in pdf. These are zesty reads. There must have been bitter fighting within the court.

One exceedingly interesting aspect of the opinion is that it directly attacks the logic of the Goodridge decision:
Plaintiffs also rely on Goodridge, where the Massachusetts court rejected the argument that procreation justified limitation of marriage to opposite-sex couples. The court said that “[t]he ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.” Goodridge, 440 Mass. at 333. The court held 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.

But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate.
The truth is, if marriage to most people weren't about children, there would be little incentive for singles to subsidize marriage through state recognition. Why, after all, should a private comitment be of such interest to the state? What business is it of the states? Why should a single person pay for it? Sooner or later some rights group is going to file a case on the unfairness of allowing those benefits at all. Wait and see - that will be the next initiative.

It's also interesting that in Goodridge the fact that same-sex couples could have children by adoption, artificial insemination, etc, was used as part of the justification for the decision, whereas in NY and WA it has now been held to be a side issue using the "stability" argument: since opposite sex couples can produce children while trying to avoid it even as a result of a one-night stand, the WA and NY SCs found that the legislature might have a rational basis for the legislative exclusion of same sex couples from marriage.Yes, they have children who are legally theirs, but not on impulse and without even trying.

The squabbling is quite something:
Perhaps because of the nature of the issue in this case and the strong feelings it brings to the front, some members of the court have uncharacteristically been led to depart significantly from the court’s limited role when deciding constitutional challenges. For example, Justice Fairhurst’s dissent declines to apply settled principles for reviewing the legislature’s acts and instead decides for itself what the public policy of this state should be. Justice Bridge’s dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it.1 Justice J.M. Johnson’s concurrence, like Justice Fairhurst’s dissent, also ignores the proper standards for reviewing legislation. And readers unfamiliar with appellate court review may not realize the extent to which this concurrence departs from customary procedures because, among other things, it merely repeats the result and much of the reasoning of the court’s decision on most issues, thus adding unnecessarily to the length of the opinions.
When you take out after those who agree with you.... There are three dissents.

If you're keeping count of the SSM court cases, NY & WA rejected the state-constitution challenges. GA rejected the claim that GA's constitutional amendment banning same-sex marriages was invalid, and the US Appeals court for the Eighth District reinstated the Nebraska constitutional amendment banning same-sex marriages. That was the silly "bill of attainder" and First Amendment right to associate one. A lower court in CT dismissed a lawsuit alleging that having civil unions for same sex couples was discriminatory.

The Eighth District appellate decision (pdf) was the really interesting one; I thought part of it was none-too-subtle request and challenge to the US SC to clarify some of its reasoning in related cases. I think it was the Eighth that had that nasty incest case; they may be getting provoked with the results of Romer and Lawrence.

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