Marriage Equality and the Equal Protection Clause

Yesterday, the Washington State Supreme Court ruled that denying marriage to same-sex couples did not violate Washington's state constitution. In doing so, they found that marriage discrimination neither targets a "suspect" class (i.e. gay people), nor burdens a fundamental, constitutional right (i.e. the right to marry). There are two basic legal arguments supporting the position that marriage discrimination is unconstitutional: (1) the Equal Protection Clause which, at its core, provides that it is unconstitutional to treat similarly situated people differently based on a group characteristic without compelling reasons for doing so, prevents marriage discrimination against same-sex couples; and (2) marriage is a fundamental right of all citizens, which right can't be denied without compelling reasons. The Washington Supreme Court found that gay and lesbian people aren't members of a "suspect class" that would bring us within the protections of the Equal Protection Clause because (1) they questioned whether sexual orientation is an "immutable" characteristic, as opposed to a "behavioral" matter; and (2) they found that recent passage of laws protecting lesbians and gay men from other types of discrimination -- combined with the recent elections of openly gay and lesbian politicians to statewide office -- prove that gays and lesbians have sufficient access to political power that the courts need not intervene to protect us. Because of these findings, the Court concluded that Washington's Defense of Marriage Act (DOMA) must be upheld if it bears any rational relation to any legitimate legislative purpose. The Court went on to hold that -- while marriage clearly is a fundamental right -- same-sex marriage is not. By so holding, they basically are putting same-sex marriage in its own category. In other words, rather than treating same-sex marriage as an extension of the fundamental right to marry to people previously denied that right, they are acting like there are two essentially different varieties of marriage: different-sex marriage and same-sex marriage. And while different-sex marriage is an absolutely fundamental right strongly protected by both federal and state constitutions, apparently same-sex marriage is not entitled to any such protections. The primary reason given by the courts for treating same-sex marriage as a different beast from different-sex marriage is that -- according to these courts -- different-sex marriage is fundamentally tied to procreation and child-rearing, while same-sex marriage isn't. Yet we allow heterosexual couples to marry well beyond the age where they are able to bear children; and the United States Supreme Court has found it unconstitutional to deny prison inmates -- even those serving life sentences -- the right to marry. And, of course, many of the same-sex couples seeking the protections of marriage are doing so for the precise reason of trying to provide better protections to their children. It seems to me that courts are getting more and more far-fetched in their rationales for marriage discrimination. New York told us that it is okay to discriminate against same-sex couples because we don't procreate by "accident and impulse" and therefore are less in need of state intervention to make sure that our children are well cared for. Now Washington has decided that "marriage" really only means "different-sex" marriage, and that same-sex marriage falls into an entirely separate category. And anyway, gay men and lesbians have become sufficiently politically powerful that we can vote in gay marriage any time we want, right?? Aside from wondering what planet these folks live on, I do take hope from the following facts: The Washington decision was 5-4, with the 9 justices authoring 6 separate opinions and clearly deeply divided. We're getting closer.... The fundamental reasons for denying marriage equality in the recent cases, while somewhat infuriating because they seem so ... well, so disingenuous, also clearly recognize that lesbians and gay men are living in our communities and raising children who attend our schools, which is -- in and of itself -- a sign of progress. And the dissents in both the New York case and the Washington case have been articulate, angry and powerful. The arguments against same-sex marriage that are carrying the day right now are so incredibly weak and circular that they simply can't withstand the test of time. If the government really wants to keep same-sex couples from marrying forever and ever, they're going to have to come up with much better arguments than the ones they're currently making. One more thing: last time I checked, it was one of the fundamental roles of courts to protect minority groups from discrimination by the majority. Since when are courts so darn differential to the legislatures?? What happened to the balance of powers?? "If you want rights, you'll have to convince the majority to vote for them" is a very odd interpretation of our state and federal constitutions. Hopefully, it will not be long before courts remember their duty to protect minority groups from discrimination, and this rash of poorly-reasoned decisions will become an asterisk in history. Then again I, for one, never thought the fight for marriage equality was going to be quick or easy.... For the full decisions, go to http://www.courts.wa.gov/newsinfo/?fa=newsinfo.internetdetail&newsid=707