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

The Passing of Ben Anderson

A lovely man died Sunday night. As many of you know, my partner and I have been together for almost 25 years, and in that time we've gotten to know each other's families well. As with all families, hers has many colorful characters -- but one of the most colorful was her Uncle Ben. Ben was one of the warmest, most sweet men I have known -- someone I always could count on for love and laughter. He made me feel cherished all the time, even if I only saw him once every few years. My most recent exchanges with Ben were about jewelry. He needed (not wanted, but NEEDED) aquamarine jewelry -- a deeply felt need in his illness, which my younger son and I went to Chinatown to fill one blustery Sunday afternoon after Little League. Ben would call me at all hours to discuss the aquamarines -- as blue as possible, but no dyes, all natural -- and to make sure I remembered his ring size -- a funny thing that my most acute memory now is of his ring size, something I never actually needed to know since we settled on a pendant. But every conversation was quirky and funny and sweet in the way Ben always was -- and every conversation ended with him making sure that I knew that he loved me, and with me assuring him that I loved him too. How wonderful to know that "I love you" was probably the last thing he ever heard from me.... Ben was diagnosed with kidney cancer just over a year ago. He fought long and hard, against long odds, and for a while we thought he actually had it beat. But in the end it got him, as cancer often does, and he died in a nursing home Sunday night at 9:30 p.m. Mountain Time with his brother and sister-in-law and dear friend Misty at his side. (Here is more on the wonderful Misty, if you're interested.) The world feels a little less colorful today than it did with Ben walking this earth -- and in these chaotic times, I will forever miss his loving presence on the outskirts of my life. He was a much more central player to his siblings and their children -- one of whom, his beloved niece Richmond, wrote a lovely tribute to him on her own blog. My hearfelt condolences to the entire, extended Anderson family on the loss of this wonderful man.

If You Liked Gay Marriage, You'll Love Gay Divorce

Hot off the Massachusetts presses, the Goodridge gals -- plaintiffs in the case by which lesbian and gay couples in Massachusetts won the right to marry -- have separated, and are considering divorce. More proof that lesbian and gay couples are just like everyone else.... Actually, in all seriousness, the ability to access the legal system to resolve our issues around custody, child support, spousal support, property divisions, etc. upon dissolution of our relationships is one of the most beneficial aspects of same-sex marriage. Without gay marriages, we have all-too-often been left to flounder through our break-up's, with people's worst instincts being able to run roughshod over any efforts at an equitable -- or even thoughtful -- process. I hope that as the gay community starts to "do" formal divorce, we learn lessons from our heterosexual friends and family members who have already been through the process. We have no history or precedents for how our community is going to handle legal divorces. We have a chance to set our own precedents, establish our own procedures that embrace community values and take heed of some of the mayhem that has resulted from more "traditional" divorces. If social conservatives fear the impact of gay marriage on the marriage institution itself, I have high hopes for the the impact of gay divorce on the divorce institution itself. Pipe dreams?? Maybe so, but I'm on vacation on Cape Cod so I'm entitled to an optimistic moment.

Greetings from Cape Cod

It's that time of year again, and I'm writing this from my mother's front porch in Cape Cod, Massachusetts. Here are my top ten ways to tell I'm back in Cape Cod: (1) The temperature and humidity level are almost the same (i.e. about 85 degrees with about 85% humidity); (2) The clam "chowda" is better than anywhere else I've ever been; (3) It is entirely acceptable to go to a dinner party in your bathing suit; (4) When gay people say they just got married, they mean they just got married; (5) News about "the big dig" (Boston's major construction project that has gone on for about 10 years and is already collapsing before it's completely finished) is bigger news than the mess in Lebanon; (6) When I go into any bar, the Red Sox are on TV; (7) People say things are "wicked" good or "wicked" hard (or hahd, as the case may be) and mean it; (8) There are more people per square inch who have known me since I was a baby than enywhere else in the world; (9) The ocean is cool enough to be thoroughly refreshing but warm enough that you can really swim in it; (10) In order to connect to the internet via the local wireless network I have to sit in a certain position on my mother's front porch and try to ignore the mosquitos and ants nibbling on my feet. That said, Cape Cod is a delightful place to be in the summer, and I'm lucky to be here. I hope all of you are finding your own delightful places to take a moment to appreciate the season. In other words: here's to a terrific summer, to all of you from waldlaw! I'll keep you posted on happenings here and elsewhere until I return to good old SF....

Understanding the New York Marriage Decision

I finally read the whole decision of the New York Court of Appeals in that state's case challenging the constitutionality of denying same-sex couples the right to marray. (NOTE: New York, unlike most states, calls their highest court the "Court of Appeals" and not the "Supreme Court" -- the New York Supreme Court is a lower court -- go figure....) In the decision (which was 4-2, with a strong dissent by the Chief Justice), the Court found that denying same-sex couples the right to marry does not violate the New York Constitution. This ruling, while disappointing to those of us who support marriage equality, is not in and of itself shocking -- so far, only two courts have found a right for same-sex couples to marry in their state constitutions: Hawaii and Massachusetts. What is shocking is the reasoning relied on by the majority. Because I cannot do the decision justice by paraphrasing, I quote: "[T]here are at least two grounds that rationally support the limitation on marriage [to only different-sex couples] ... both of which are derived from the undisputed assumption that marriage is important to the welfare of children. "First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not.... "The Legislature could also find that such [opposite-sex] relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born.... "The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex create a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more." Excuse me -- this is now Deborah Wald talking -- but did the highest court of New York just say that because heterosexual couples become parents by "accident or impulse" and lesbian and gay couples do not, this provides a rationale basis to only allow heterosexual couples to marry? Do children born to couples who actually planned for them -- be they gay couples or straight couples -- deserve less protection than children born by happenstance? Am I missing something here??? Anyway, to continue: "There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like...." [And we all know that children only are exposed to their parents on a daily basis -- there are no other significant adults in their lives. No teachers. No coaches. No aunts or uncles or close family friends. Oops, sorry, back to the decision....] "Plaintiffs ... argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise.... "Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home.... And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households." Okay, here we go again: is the court actually saying that even if there is no evidence to support the premise that children do better in homes with parents of different sexes than in homes with parents of the same sex, the Legislature still could make this [apparently false] assumption the basis for discriminating against same-sex couples based on the legislators's own, personal, "intuition and experience" -- their personal "common-sense" judgments?? Is this really the highest court of New York expounding on their Constitution and its meaning to the citizenry?? And these are the ONLY bases provided by the court to support marriage discrimination: the Legislature could find that the fact that heterosexual couples are more likely to have children by mistake makes marriage more critical as a method of stabilizing heterosexual relationships than homosexual relationships; and the Legislature could find that children do better with a mom and a dad, even if there is no scientific basis for this view. Excuse me, but I am offended, not just on behalf of my own family but on behalf of responsible heterosexual couples who plan and provide for their children. For the highest court of New York to make heterosexual irresponsibility the basis for marriage discrimination is, quite frankly, offensive. 'Nuf said. The dissent makes an excellent parallel, which reminds me of a discussion I had with my students at the University of San Francisco School of Law about the difference between Bowers v. Hardwick (finding anti-sodomy statutes constitutional) and Lawrence v. Texas (overruling Bowers 7 years later). In Bowers, decided in 1986, the U.S. Supreme Court posed the constitutional question as whether the United States Constitution conferred a "fundamental right upon homosexuals to engage in sodomy." Put this way, there was little doubt that the answer would be a resounding NO. But seven years later, when the Supreme Court reconsidered the same issue in Lawrence, they framed the question completely differently. The question considered by the Lawrence court was whether the fundamental right to engage in private, consensual sexual conduct applied equally to both homosexuals and heterosexuals. Put in those terms, it was easy for the Court to find it unconstitutional to criminalize the private, sexual behavior of gay people. Similarly, the New York Court of Appeals has framed the marriage issue as whether the State of New York has a rational basis for supporting opposite-sex marriages -- which it obviously does -- rather than whether there is a rational basis for excluding same-sex couples from the institution of marriage. As stated by the Chief Justice of the Court of Appeals in her dissent: "[W]hile encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone." The Chief Justice goes on: "The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare...." So there you have it. An appallingly simplistic decision by the highest court of New York, with an impressively coherent dissent by the Chief Justice which is well worth reading for those of you who are still hungry for details after this long blog posting. It took seven years for the United States Supreme Court to overrule Bowers v. Hardwick, declaring that "Bowers was not correct when it was decided, and it is not correct today." How long will it take for the State of New York to admit that it is unconstitutional in this day and age to discriminate against families -- and children -- based on the gender of the partners? I guess we'll have to wait and see....