Today, a bitterly divided Washington Supreme Court, in six separate opinions, voted 5-4 to uphold a State ban on gay marriage.
All sides agreed that the State had a rational interest in promoting opposite-sex marriage. The difference was in where they went from there.
The majority said they had no choice but to defer to Congress's stated intentions in enacting the so-called Defense of Marriage Act (DOMA). Wrote the majority, "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."
The dissenters, on the other hand, lambasted the majority for rolling over and accepting the stated reasons of the Congress at face-value, rather than bravely weighing the issue themselves. "Had the Court adopted the current plurality’s mindset," wrote Justice Bobbe J. Bridge, "it would not have rectified a long list of now obvious wrongs."
The minority observed that banning same-sex marriage in fact did absolutely nothing to promote opposite-sex marriage. Justice Mary E. Fairhurst wrote simply that, "the statutory denial of the right to marry to same-sex couples cannot rationally further the proffered state interests." Quite to the contrary, they said, much of the rational basis for promoting opposite-sex marriage applied equally well, if not better, to same-sex marriage. Noted Fairhurst, "If anything, denying same-sex parents the right to marry would seem to make resolving parental rights and obligations more difficult."
In her angry opinion, joined by all four dissenters, Fairhurst wrote that the right to marry, "the person of one's choice," was a, "fundamental right," and that the majority had, "shirked its responsibility to the people," when it decided to, "condone blatant discrimination against Washington's gay and lesbian citizens." Fairhurst saved her strongest words for DOMA itself; she wrote bluntly that, "DOMA was motivated solely by animus toward homosexuals."
Justice Bridge noted--making a First Amendment argument that the Episcopalians (and USWest?) might well appreciate--that if DOMA were taken at face value as an attempt to uphold the "sanctity" of marriage, "then it is clearly an unconstitutional foray into state-sanctioned religious belief." Justice Bridge accused the majority of deliberately ignoring both, "the petitioners’ fundamental right to privacy," and also, "the legislature’s blatant animosity toward gays and lesbians."
Finally, Bridge compared the majority's reasoning to that of the majority in the (now-discredited) Bowers v. Hardwick who claimed the case was merely about, "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Justice Bridge wrote that, "Future generations... will undoubtedly look back on our holding today with regret and even shame."
Supporters of gay marriage may take comfort in the knowledge that when this same question came before the Washington courts 32 years ago, the idea of gay marriage was unanimously dismissed by an appellate panel and the Washington Supreme Court refused to hear it.