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Edited on Wed Jul-26-06 10:50 AM by kurtyboy
Majority Opinion from Madsen, joined by Alexander and C. Johnson:
"In brief, unless a law is a grant of positive favoritism to a minority
class, we apply the same constitutional analysis under the state
constitution's privileges and immunities clause that is applied under the
federal constitution's equal protection clause. DOMA does not grant a
privilege or immunity to a favored minority class, and we accordingly apply
the federal analysis. The plaintiffs have not established that they are
members of a suspect class or that they have a fundamental right to
marriage that includes the right to marry a person of the same sex.
Therefore, we apply the highly deferential rational basis standard of
review to the legislature's decision that only opposite-sex couples are
entitled to civil marriage in this state. Under this standard, DOMA is
constitutional because the legislature was entitled to believe that
limiting marriage to opposite-sex couples furthers procreation, essential
to survival of the human race, and furthers the well-being of children by
encouraging families where children are reared in homes headed by the
children's biological parents. Allowing same-sex couples to marry does
not, in the legislature's view, further these purposes.2 Accordingly,
there is no violation of the privileges and immunities clause.
There also is no violation of the state due process clause. DOMA
bears a reasonable relationship to legitimate state interests --
procreation and child-rearing. Nor do we find DOMA invalid as a violation
of privacy interests protected by article I, section 7 of the Washington
State Constitution. The people of Washington have not had in the past nor,
at this time, are they entitled to an expectation that they may choose to
marry a person of the same sex.
Finally, DOMA does not violate the state constitution's equal rights
amendment because that provision prohibits laws that render benefits to or
restrict or deny rights of one sex. DOMA treats both sexes the same;
neither a man nor a woman may marry a person of the same sex."
Dissent From Fairhurst, Joined by Chambers, Owens and Bridge:
"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."
Concurrence from <right wing wackadoo> J. Johnson, joined by <civil libertarian> Sanders:
"This is a difficult case only if a court disregards the text and history of the
state and federal constitutions and laws in order to write new laws for our
State's citizens. Courts are not granted such powers under our
constitutional system. Our oath requires us to uphold the constitution and
laws, not rewrite them.
Marriage is the union of one man and one woman, and every Washington
citizen has a constitutional right to enter into such a marriage, 1 subject
only to limited regulation under the police power (for example, restricting
underage or close family marriage). This understanding of marriage has
been continuously recognized throughout the history of the United States
and of the state of Washington, including Washington territorial law. The
unique and binary biological nature of marriage and its exclusive link with
procreation and responsible child rearing has defined the institution at
common law and in statutory codes and express constitutional provisions of
many states.2
When the institution of marriage was first challenged in the United States
Supreme Court through claims to religiously endorsed polygamy, this
historical definition of marriage as the union of one man and one woman was
confirmed. The same understanding has been confirmed in every subsequent
case in that court when marriage has been considered in many other
contexts."
Concurrence from Alexander (in it's entirety...emphasis added by Kurtyboy):
"Although many pages of opinion have
been written in this case, the issue with which we are here confronted is
really quite narrow. The question before us is this: is the provision in
Washington's marriage statute, RCW 26.04.010, which clearly states that
marriage is between a "male and a female," unconstitutional? Put another
way, have the petitioners met their burden of overcoming the presumption
that this statutory provision is constitutional? The answer to both
questions is clearly "no," for reasons stated very articulately by Justice
Madsen in the majority opinion. If we were to conclude otherwise, as do
the dissenters, we would be usurping the function of the legislature or the
people as defined in article II of the constitution of the state of
Washington.
I quickly add, though, that there is nothing in the opinion that I
have signed which should be read as casting doubt on the right of the
legislature or the people to broaden the marriage act or provide other
forms of civil union if that is their will."
Dissent from Bridge:
"If the DOMA is really about the "sanctity" of marriage, as its title
implies, then it is clearly an unconstitutional foray into state-sanctioned
religious belief. If the DOMA purports to further some State purpose of
preserving the family unit, as the plurality would interpret it, then I
cannot imagine better candidates to fulfill that purpose than the same-sex
couples who are the plaintiffs in these consolidated actions.
I agree with Justice Fairhurst that the DOMA wholly fails a rational basis
review. And, I agree that our nation's jurisprudence suggests we should
hold that where a union is not prohibited by age or bloodlines
(restrictions grounded in legitimate state interests in the protection of
minors and preventing congenital birth defects), it is a fundamental right
of an individual to marry the person of his or her choice. Justice
Fairhurst also correctly notes that the plurality and concurrences
disingenuously frame the question before us. Dissent (Fairhurst, J.) at 2.
They ask not whether the right to marry is fundamental, or whether a
prohibition on same-sex marriage strengthens the putative state interest in
the frequency and longevity of heterosexual marriage (a dubious policy
clearly at odds with our liberalized laws of marital dissolution), but
whether there is a fundamental right to "same-sex" marriage. Just as the
United States Supreme Court majority did in Bowers v. Hardwick 20 years
ago, today's plurality and Justice J.M. Johnson's concurrence frame the
issue before us so as to ignore not only petitioners' fundamental right to
privacy but also the legislature's blatant animosity toward gays and
lesbians.
Dissent from Chambers, joined by Owens:
The lead opinion concludes plaintiffs have not established "that they
have a fundamental right to marriage that includes the right to marry a
person of the same sex." Lead opinion at 5. Because the lead opinion
concludes that no fundamental right is implicated, the rest of its
discussion on article I, section 12 is unnecessary and dicta.
Our state privileges and immunities clause provides:
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."
<snip>
"Although the lead opinion cites authority for its conclusion, I disagree
with both its approach and its determination that the authorities cited
lead naturally to its conclusion. The fact that we have taken this
approach during the infancy of our interpretation of the clause does not
turn it into the law of this state. Our constitution demands a
deliberative process. We should not abdicate our responsibility to
interpret Washington's constitution to the judicial branch of a different
government, let alone defer to an interpretation of a different clause of a
different constitution.
Because, by its plain language, history, and structure, article I,
section 12 applies to any privilege or immunity granted by the State on
unequal terms and because I continue to believe, as we held in Grant County
Fire Protection District No. 5 v. City of Moses Lake, 150 Wn.2d 791, 806,
83 P.3d 419 (2004) (Grant County II), that our constitution protects the
privileges and immunities of "all citizens," I write separately."
(NOTES: Owens, Alexander, and Chambers are up for re-election this year---Their races will likely be decided in the Primary on September 19th--Kurtyboy)
ON EDIT: Added Alexander's short concurrence
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