"I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." - Thomas Jefferson (appears in the Jefferson Memorial)

We were speculating about a month ago about the direction the Washington Senate race has been taking, and whether it might be about to undertake another shift. Early indications are that it has.

This is a contest with a series of distinct movements, from uncertainty about Democratic Senator Maria Cantwell‘s popularity in her state, to varied receptions on the challenge entry of Republican Mike McGavick, to a strong pitch of favorable headlines and polls early this year, to several months of erosion and steady McGavick gains in the spring and summer. The question was, would Cantwell take hold of what looked like drift and turn the situation around?

We wrote that about the time her campaign started to kick its engine into gear, after a long stretch of what looked like coasting. McGavick’s campaign, operating on a smaller scale, has looked for active, from its ad buys to the promotion around his bus tour across the state. he gave off a sense of energy and action, while Cantwell was only fitfully visible in the state.

In the last month, there’s been pickup. She’s been more visible. Her campaign has gotten its ad buys underway. The blast-back at McGavick, up to and including a web site parodying McGavick’s tour, is up, and so has been the Democratic questioning and responses at McGavick’s campaign stops. (His bus tour still looks like a good idea, but the Democrats have been hard at work minimizing its value to him.) The only significant primary challenge to Cantwell (not one that could realistically deny her the nomination, but could do longer-term damage) was wiped out with the hiring of that candidate into the Cantwell campaign. That last maneuver may have generated mixed headlines (buying off your opponent?), but it probably restored a sense that Cantwell isn’t to be trifled with.

Taken together, that may explain some of the change in polling trends. At the beginning of the year, Rasmussen Reports polling said, she registered 51% to 26% for McGavick – a 15% lead. That withered away until by mid-June she was down to 44% to 40% for McGavick – a four-point lead, within the margin of error.

Then she started to engage in the campaign again, the Rasmussen poll just out puts her at 48% to 37% for McGavick – an 11% lead. Her personal favorability is up too, to 51%.

None of this makes the race a done deal yet. But what looked like shaky ground for Cantwell looks a bit more solid now, provided she maintains the momentum.

Share on Facebook


Does the dropout of Jeff Fropf from re-election to his House seat open a new House opportunity for Oregon Democrats?

Jeff KropfThe snap presumption seems to be that no, it doesn’t. After rummaging through the stats, the area and the candidate situation, we’d conclude that the seat likely will remain Republican next term. Like but not definitely – Kropf’s leave-taking has opened an opportunity for Democrats that hadn’t existed previously.

Kropf is a native of the Albany area and long has been involved in real estate and run a farm near Sublimity, east of that city at the feet of the Cascades. Since his first election to the House in 1998 with 59.7% of the vote, he has had no trouble winning re-election, and his seat has been slated as safe Republican since. He has been one of the more flamboyant House members and made some headlines for flying an immigration watch on the border with Mexico; none of it has done him harm politically, and probably helped.

He filed for re-election this year, and he hasn’t been considered at risk. But in the last few years he has also been a radio talk show host, part time, at KXL in Portland (occasionally subbing for Lars Larsen), and he has said he’s interested in pursuing that line of work. It came to a decision in recent weeks when he and the station learned he’d have to give his opponent this year, Democrat Dan Thackaberry, equal air time, or pay his campaign the equivalent. Faced with the choice, Kropf ended his re-election bid rather than give up the radio show. Quote from Kropf: “I have to think about my future, and it isn’t in politics, and it’s likely to be in radio.” (Will the show lose some of its spark when its host isn’t an actual state official? But that’s another matter.)

The Republicans have until August 29 to replace him; the decision probably won’t come for another couple of weeks at least. Local Republicans said they’re not worried about losing the seat, pointing to the 43%-34% Republican edge in voter registration.

But are they right to be so unconcerned?

House District 17

The voters of the district are in eastern Linn and eastern Marion counties, about two-thirds in Linn; the communities there include Sublimity, Scio, Lebanon (the largest of them) and Sweet Home. It is a place of sometimes stressed agriculture and timber, but also new suburban development and some new ag and industry growth as well. It’s not a boom area, but it’s certainly not in decay. And, with population exports from the Salem area and elsewhere, it is changing somewhat.

It is Republican clearly, though less than on the other side of the Cascades. It votes generally for Republicans for higher office, but there is a ballot-splitting tendency too: Votes were deeply split around here in 2004 for U.S. Senate and representative (the Democrats won both in Linn County overall).

Part of what has been happening is that Democratic challenges to Republicans have been intermittent. You can see why that might be. After easily putting away Democrats in earlier races, Kropf drew only minor-party opposition in 2004.

But these things can be personal, and a new Republican candidate will have to start from scratch in mid-August or later.

Thackaberry isn’t starting from the strongest advantage point. His campaign appears to be low-key; as an indicator, he has almost no web presence, and on the Oregon House Democrats web page, he’s one of five candidates who didn’t even contribute a picture.

Still, he’s been out there in the field, and he’s an established figure at least – a member of the Lebanon City Council and an established farmer.

And there’s an interesting neighboring House race. District 18 to the north is in many ways similar to 17, a comparable mix of small towns and a traditional ag/logging base undergoing some changes. There, incumbent Mac Sumner had a strong contest two years ago from Democrat Jim Gilbert, who held Sumner to 55.8%; and Gilbert is running an apparently stronger race this year.

The indicators don’t favor the Democratic effort in 17. But – especially since no one yet knows who the Republican nominee will be – they do suggest an opening. If it’s going to be taken usefully, now would be the time to get started.

Share on Facebook


It’s been on hold for a while, but within a few months – maybe around the start of 2007 – the child sex abuse case involving the Boy Scouts of Washington state, T.S., M.S., K.S. v. Boy Scouts of America, appears likely to go forward.

The Seattle Post Intelligencer reports: “Dozens of reports of alleged sexual abuse of Washington boys are included in the files that the Boy Scouts of America must turn over to three men alleging years of molestation by a scoutmaster. The reports are part of at least 1,000 such files compiled nationally by the Boy Scouts that can be used in a lawsuit against the organization, the state Supreme Court ruled Thursday.”

This may turn out to be more explosive than the gay marriage ruling – could be the hottest thing the Washington Supreme Court does all year.

ALSO NOTE As a matter of political impact, take a look at who fell where on this. Justice Susan Owens wrote the majority opinion, with Chief Justice Gerry Alexander and Justices Tom Chambers, Bobbe Bridge, Barbara Madsen, Charles Johnson and Mary Fairhurst joining. In opposition? Who you’d expect: Justices Jim Johnson and Richard Sanders.

Share on Facebook


Lane Rawlins, who has been president of Washington State University throughout this decade, says he will be leaving the post next year; at 68, his retirement comes at an understandable point. But it makes this next year a critical point for WSU and medical schooling in the Northwest.

Lane RawkinsRawlins is a truly experienced old hand at university administration. His years at WSU go back four decades, and his bio notes that he “served as department chair and then as WSU’s vice provost. He returned to WSU in 2000 after serving nine years as president of the University of Memphis and before that as academic affairs vice chancellor of the University of Alabama System.” And his years at WSU have been relatively smooth and solid, a time of growth but not explosion.

That makes his role in what could be an important development at WSU – expansion there of medical school facilities – potentially significant.

The question of medical education in the northwest – the states serviced by the regional co-op WWAMI (Washington, Wyoming, Alaska, Montana, Idaho) – has become a live one in the last couple of years. There’s been some discussion in Wyoming about local medical education. There’s been more than that in Idaho, where a number of partisans of Idaho State University at Pocatello – including its former interim president and to an extent it’s new leader as well – have proposed a long-term plan for developing a medical school there. (To be sure, quite a few Idaho leaders consider the idea improbable; butr who knows?) That regional pivot is a substantial component in the medical school system at the University of Washington at Seattle, where it is based.

So how does, or should, Washington respond? An AP news story Friday reported that “The presidents of Washington State University, the UW and Eastern Washington University said Friday they will ask for the funding when the Legislature meets in January. If approved, the plan calls for 20 more medical students and eight dental students to be admitted each year to the University of Washington programs. First-year students would take classes at Riverpoint, WSU’s Spokane campus.”

You can imagine how WSU might seize on this foot in the door. But will it get that far?

That may have a lot to do with Rawlins’ work on the subject between here and his retirement next time – a stretch including the next legislative session. The new president of WSU is unlikely to have the chits or gravitas to make things happen the way Rawlins might. His last year in the presidency could turn out to be a significant pivot in medical education, and its expansion and direction, in the region.

Share on Facebook


About three months back we posted results from a political poll in Idaho – a campaign poll – with the idea that its results could then be compared to the final, actual results.

That poll, from the Sheila Sorensen campaign for the 1st District U.S. House seat, turned out not to be very close to the primary voting results. That poll. we noted, “gives Sorensen 33.2%, enough for a distant first place. It shows Robert Vasquez and Skip Brandt tied for second at 15.4% each, Keith Johnson fourth at 14%, Sali fifth at 11.8% and Norm Semanko last at 10.2%. There is a 5.2% margin of error, which logically puts all of the candidates except Sorensen in spitting distance of each other.” Where did it go wrong? It drastically overstated Sorensen’s strength (she came in third) and Brandt’s (he came in last), and drastically underestimated Sali’s – he won with about 26% of the vote. It did call the Vasquez, Johnson and Semanko results with fair accuracy.

Was there a pattern? Yes. It was a pattern we’ve seen before in Idaho: An underestimation of the strength of the right, and an overestimation of strength on the left (the Brandt quirk aside).

This week we have a new poll, the first new one publicly released on Idaho races since back then. It is an independent (non-campaign) poll and its methodology is quite a bit different, but some of the aspects of the Sorensne poll might nevertheless be holding in the back of your mind.

The new poll by Greg Smith & Associates is a standard poll using traditional polling methology (the Sorensen poll was not). Here is what the new one says:

Office Candidate hard support soft support total
Governor Butch Otter/R 34% 13% 47%
Governor Jerry Brady/D 20% 5% 25%
Lt Gov Jim Risch/R 43% 8% 51%
Lt Gov Larry La Rocco/D 29% 1% 30%
1st US Rep Bill Sali/R 35% 6% 41%
1st US Rep Larry Grant/D 20% 5% 25%

What might we draw from this?

You can draw a bunch of conclusions. Brady’s campaign released (by email; it’s not available on the web site) this: “Congressman Otter has been a politician since Gerald Ford was President, and only 34% of Idahoans are sure to vote for him … I’d be concerned if I were Congressman Otter. With numbers like that, if I were Otter, I might spend more time in Idaho and less time in D.C. With 46% of the voters unsure who they will support, I feel good because Idahoans don’t want another career politician. They want someone like me, someone who is independent, like Idaho.”

Okay, to a point: Incumbents who fall below 50% are often considered to be in danger, and even Risch – coming off a pile of favorable headlines – hits only 51%. Sali isn’t an incumbent, but as the Republican in the race he has a kind of position of psychological incumbency, so his 41% looks a little unimpressive.

Here’s what Smith (who, we should note, is a Republican of long standing and formerly a Republican congressional staffer) had to say:

“Although this poll is an early measurement of public opinion, and as a result almost certainly a strong reflection of generic party preference, one nonetheless has to be impressed by the leads by Otter over Brady, Risch over LaRocco, and Sali over Grant. In the case of Otter, the money the campaign has and will have raised, his gregariousness, the long list of corporate and personal supporters, and his overall congruence of political philosophy with the Idaho electorate have all played contributing roles. As to Risch, he enjoys the political advantage of being governor until January, 2007 (temporarily replacing now-Secretary of the Interior and former Idaho governor Dirk Kempthorne), and as a result is already reaping the benefits of incumbency and minimizing the name awareness advantage that LaRocco might otherwise have had as a former Idaho 1st District Congressman. For example, Risch gained almost nine percentage points in support beginning Tuesday evening (July 25) after announcing that the Idaho Legislature would go into special session in August in order to directly address property tax reform – one of the biggest concerns of Idaho voters. And, even Risch detractors are impressed by his pace and focus of work in just his first few weeks of being governor. Brady, LaRocco, and Grant, their Democratic opponents, are all very intelligent and capable, and should not be underestimated. All things equal, however, they need to (1) derive higher levels of name awareness, (2) develop appealing candidate profiles, and (3) convince Idaho voters that they as Democrats are as much in tune with them as their Republican opponents.“

Smith added, “At this early stage, the race to succeed Otter as Idaho’s 1st District Congressman had been perceived as being the most hotly contested of the three. Both Sali and Grant have work to do, given that a third of likely voters do not express either “hard” or “soft” support for either candidate at this point. Larry Grant needs to convince the national Democratic powers that be that he has a good chance of winning (which has not sufficiently occurred to date), and convince Idaho 1st District voters that he is not a Democrat in the vein of more liberal candidates/ officeholders in other parts of the country. Bill Sali still needs to continue uniting Republican support (given he won the Republican primary with only 26% of the 1st District GOP primary vote), and that much of the media treatment of him, and perception(s) which may be arising as a result, are misleading or incorrect.”

We’d make just three other quick observations.

1. It’s early. July is political down-time; wait for mid-September at least for something more definitive.

2. Political polling in Idaho is a tricky business. Our belief is that a significant number of Idahoans like to lie to pollsters. And

3. Polls in Idaho tend to underestimate the strength of hard-core conservatives, a trend going back quite a few years. Keep a watchin’.

Share on Facebook


Annals of free enterprise: or, be careful what you wish for. Southwest Idaho’s Kuna has been, in recent years, a place celebrating growth and minimal government hindrance of same. Business is more than welcome.

Enter Best Bath, a manfacturer of showers and bath units (notably for the disabled), and which according to some of its neighbors is a highly noticable presense. In an Idaho Statesman story today: “But Kuna homeowners who live near the business park where Best Bath has another facility — and plans to move its Boise operations — told the Kuna City Council on Tuesday they will not tolerate odors from the plant, which would more than triple in size under company plans. More than 100 people turned out for the meeting. South Kuna residents expressed outrage that they were not told when they bought their homes about Best Bath’s planned expansion or its chemical emissions. Now, some say they are being told by real estate agents that they must disclose that information when selling.”

How many of these people make the connection with that dreadful “government regulation” -r – gasp – land use rules? The presumption, at least, long has been that a lot of people moved to the Kuna and Southwest Community area to escape just such regulation.

You could ask their legislators – Bill Sali, for instance – about it and see what they think . . .

Share on Facebook


Most of the releases of the state quarters – those with designs emanating from the 50 states – have followed a smooth progression. Not so Idaho’s, owing partly to the peculiar timing of the shift in control of the governor’s office, and partly owing to what sounds like a screwup at the U.S. Department of the Treasury.

Idaho quarter designThe announcement of the Idaho quarter – those for Washington and Oregon were released earlier – came this week, though it might have saw in the treasury files for some time. Betsy Russell of the Spokane Spokesman-Review recounts:

And the only reason all of us know this today? Tim Woodward. The Idaho Statesman columnist and reporter, whose intrepid reporting on Idaho goings-on has brought things to light for decades in our state, has been following the state quarter saga closely, and he, alone, noticed that the U.S. Treasury had approved Idaho’s design in late June. Woodward contacted Gov. Jim Risch’s office, which the Treasury hadn’t notified. Then, once they confirmed it, he asked to see the quarter. The governor’s office declined, citing plans to unveil it ceremoniously later, so Woodward filed a public records request. That was Thursday, and by law, the governor’s office had three working days to respond. So today, they held a press conference and unveiled the quarter – one day before the deadline to respond to Woodward.

And what of the design?

As noted in this space earlier – in response to both the Washington and Oregon designs – the job of representing a state in a drawing the size of a quarter is really an impossible task.

We took a call yesterday from an Eastern Idaho newspaper inquiring about the decision to illustrate a Peregine Falcon rather than the traditional Idaho potato. We responded that the potato has gotten plenty of play already, and while an intact potato just looks like an undifferentiated oval, a potato on a dinner plate would be too complex a design for a quarter. On the other hand, Idaho now has a quarter featuring a falcon apparently ready to wash down its declaration of “esto perpetua” with a tasty snack of . . . Idaho.

But it works. Washington had the salmon at Mount Ranier, Oregon had Crater Lake. Idaho’s falls neatly in the nature scene pattern of western quarters.

Share on Facebook


Well, it must be an official election in Washington state. Mike the Mover is back on the ballot, running for the U.S. Senate.

Mike the MoverThis makes at least 15 elections for the former Michael Patrick Shanks – now legally Mike the Mover, and yes that is what he does for a living – and zero wins. Or even near-wins.

Why does he do it? When he ran for governor two years ago, the Seattle Times noted this: “He estimates his moving company will do about $150,000 in extra business this year because of name recognition he’ll gain from running for office — a pretty good return on a $1,360 filing fee. It wasn’t originally a money-making scheme, he said, but it worked out that way.”

Filing deadline for Washington candidates is tomorrow. But now that Mike’s in, we can all breathe easier.

Share on Facebook


The little rural Idaho community of Garden Valley (which loosely bumps up against the little incorporated city of Crouch) is about to become a lot more substantial.

We’ve spent a good deal of time around the Garden Valley area (north of Horseshoe Bend, off Highway 55) over the years. It has always been lightly populated, home to a couple of hundred people or so at Crouch (one of the more charmingly funky communities in the state) and scattered residents along the South Fork of the Payette river. Mostly, the area looks like rural countryside, which is what it is.

That will be changing before long. The Boise County Commission has okayed the development plan called Southfork Landing for development; that is slated to add 605 houses to the immediate area. The people living there will more than double the population of the Garden Valley area, completely changing its character.

There are protests by local Boise Countians, which is why the action occurred today. A session earlier this week turned rancorous as vounty residents declared the commission wasn’t listening to them. The decision meeting was planned for next Tuesday, but was quietly reset for this morning. Commission Chair Roger Jackson said that “If everyone had kept quiet, it would have been done at the Tuesday meeting.”

On the other hand, what difference would it have made?

Share on Facebook


In our earlier post on the Washington Supreme Court’s same-sex marriage decision we focused on the political and some of the legal aspects of the decision, but we didn’t get much into the substance of it.

So what are people thinking? We’ll refer you a thread in today’s Spokesman-Review Huckleberries, where you’ll see a pretty wide range of opinion.

Blog-runner Dave Oliveria, self-described as a Christian conservative, said that he approved of the ruling. Readers weighed in pro and con, with this bit of commentary from the paper’s editor, Steve Smith:

“As always, love the thread. But I can’t help but comment on the ‘time immemorial’ point. From time immemorial, marriage has included multiple-spouse arrangements (and still does in many cultures) has acknowledged gay unions (Egypt, Greece, Rome), has sanctified child abuse (eight-year-old brides for 80-year-old men), has been based on economics, politics and convenience. For most of western history, marriage was a sacrmanet that deprived women of rights, property and pesonal security with efforts to change that relationshiop labeled heresy (presumably because woman’s role was so defined for time immemorial). For American evangelicals who tend to be most opposed to gay marriage, time immemorial really means time as measured by their cultural clock. I just think we need to be honest about that.”

Oliveria responded, “I was thinking Adam and Eve here, unless the snake was involved in a menage a trois.”

Question: Whoever said Adam and Eve were married? The Bible doesn’t. And if you say God performed the ceremony, who were the witnesses?

Share on Facebook


The big jump up and shout news this week from the backers of Idaho 1st House district Democrat Larry Grant comes to this: His opponent, Republican Bill Sali, just received a pile of money from the Republican Retain Our Majority Program (ROMP) fund.

The rationale is cleanly put by Jonathan Singer on the MyDD Democratic blog: “To this point, I knew that House Republicans were concerned about the possibility that they would lose control of the chamber. Yet I had no idea that they were in such a state of panic that they would divert hundreds of thousands of dollars to Idaho, one of just two states in which a majority of residents approve of President Bush; into a district in which President Bush received more than two-thirds of the vote; for a candidate who has already raised more than $500,000 – especially at a time when the NRCC is trailing the DCCC in cash-on-hand.”

Now. Flip over to Congressional Quarterly (yeah, right, registration required), as solid a reporter of congressional politics as you will find anywhere, and you’ll find the Idaho 1st listed as “safe Republican.” (We discussed it with them last week.)

The view here is that CQ is closer to the mark. We’ve noted before a tendency among some Democrats to underestimate their difficulties in this race.

Sali did raise over a half-mill for his primary – but that’s just it, he raised it for his primary, a notably difficult primary, and now he and his backers have to go back to the well. Grant has raised about half as much, but because he had no serious primary contest, he has relatively more money on hand. Sali’s well-heeled primary backers – Club for Growth and its close allies – will not let him go unfunded in the general. Funds get shifted around in the giant D.C. money pot. And so here we are. We’re unconvinced the ROMP money is a big deal. We’re not seeing evidence of “panic.”

However. In discussing the rating of the race with CQ, we suggested (not entirely facetiously) adding an asterisk to the “safe Republican” designation. Odds may favor Republican retention of the seat, but enough of what you might call “free radicals” are floating around to keep this race alive, and even turning it around. We may have hit a useful point for discussing some of them.

It should be noted, again, that Grant is a quality candidate, and even Republican leaders haven’t offered much direct criticism of him. He is running an energetic campaign. A good deal of Republican support of Sali is less than enthusiastic. The national trend lines continue to suggest a wave of some size for Democrats this fall. Even in Idaho, President Bush’s support is mediocre (even if still among the best in the country). Republicans are in national control, the national direction isn’t broadly considered a good one.

So why not figure that Republican voters will soften this year, that Grant can just reach across the middle?

Possibly some of that will happen – and it constitutes a wild card. But you also have to consider the existing environment, one frozen in place for a dozen years now.

The biggest obstacle for any Democrat running for office in Idaho outside of a few small locations (central Boise, Blaine County, Bannock County, Moscow and maybe Lewiston) is a kind of branding.

Among a large segment of the voting population, Democrats have been so thoroughly tarred, as worthless at best and evil at worst, that they can’t get a hearing. Democrats are a priori awful, instantly dismissable – whatever they say need not even be listened to. If some trace statement does get through that – shocking! – seems to make sense, it is quickly dismissable as being for campaign consumption only. Republicans, in contrast, are not necessarily considered great or superb, or even as (logically, since their campaign talk is so often anti-government) fine stewards of government. They’re simply not supposed to be as bad as those Democrats are and, in their dislike of government and most of what it does, are at least more like us. At least, that’s the message they get consistently from conservative talk radio (the only kind in Idaho, and big in Idaho), from Fox News, from all the politicians (who are almost all Republican) the political figures they know. It’s a monotoned political culture, and contrary messages do not easily break through.

Busting through that is the challenge, these days, for any Idaho Democrat running outside the small Democratic pockets.

Sali’s personal political track record would make him highly vulnerable, if enough voters come to know it – as they don’t know (and as matters stand, likely won’t in November). But suppose. Democrats could – it would be a risky maneuver – turn Sali into their Exhibit A of what has gone wrong with serious self-governance in Idaho – the civic laziness, the susceptibility to demonizing, the lack of professionalism, the over-cynicism. It would involve throwing the voters’ attitudes back in their faces, and in Sali the Democrats could hardly have a better case study.

None of this would be easy (it would certainly constitute “negative campaigning”) and it might turn off the voters.

Are there better ideas for breaking through? Maybe. But right now, a working majority of Idaho voters are as solidly Republican as deep South voters were Democratic a century ago. Changes in that kind of locked-down response don’t come easy.

Share on Facebook


The Washington Supreme Court has ruled: The subject of same-sex marriage will not be a huge factor in the campaigns of this year’s general election in Washington and beyond.

Washington courtsThat sure looks like the immediate effect of Heather Anderson v. King County, in which the court held that the Washington Legislature is constitutionally able to limit marriage to opposite-sex couples. That is what the Legislature sought to do in 1998 with passage of its version of the Defense of Marriage Act; the constitutionality of the measure was challenged in court, and lower courts said it was unconstitutional.

That’s the bottom line. The decision rambles on quite a bit from there, not surprising since the justices took well over a year since the oral arguments to reach a decision which led to six separate opinions from the court. The key statement, near the top of the decision, reads like this:

The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer “yes,” and we therefore reverse the trial courts.
In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington. It is important to note that the court’s role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be.

That opens a political door on same-sex marriage: The legislature could always reverse DOMA and that reversal would, likewise, be constitutional. And you can expect candidates will be asked about it in the months ahead.

Smart candidates sympathetic with the same-sex marriage cause, though, could easily say: “We just passed a major measure on gay rights; let’s pause to see how all that shakes out before moving on.” And that may be enough, for the time being.

The new decision does have impact beyond the subject of gay marriage, because its core was the question of how powerful, in the system of Washington government, the state legislature is, and also the questions of where individual rights extend.

A couple of passages bear reading. First, there’s this one on the nature of an inherent right to marriage – exposing as well the internal debate within the court, and maybe some of the reasons the decision took so long. (The decision, written by Justice Barbara Madsen, was directly concurred in only by Chief Justice Gerry L. Alexander and Justice Charles W. Johnson; the rest of the majority was cobbled together with two concurrences; there were three dissents.)

Here, the solid body of constitutional law disfavors the conclusion that there is a right to marry a person of the same sex. It may be a measure of this fact that Justice Fairhurst’s dissent is replete with citation to dissenting and concurring opinions, and that, in the end, it cites very little case law that, without being overstated, supports its conclusions. 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. 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.

That reference to declarations by the people/by the courts almost speaks as a direct political counter to court critics on the right – it employs their language and framework – even if it wasn’t necessarily so intended. It also pops the balloon of this decision as a major club in the (very serious) Supreme Court races this fall.

Those interested in the distinctions between the forms of government in the Northwest states may also find this passage, concerning rights built into the constituition, of interest.

We explained in Grant County II that the Washington provision was modeled after article I, section 20 of the Oregon State Constitution, which the Oregon Supreme Court has described as “‘”the antithesis of the fourteenth amendment in that {the Oregon state constitution} prevent{s} the enlargement of the rights of some in discrimination against the rights of others, while the fourteenth amendment prevents the curtailment of rights.”‘” Grant County II, 150 Wn.2d at 807 n.11 (quoting State v. Clark, 291 Or. 231, 236 n.8, 630 P.2d 810 (1981) (quoting State v. Savage, 96 Or. 53, 59, 184 P. 567 (1919))).
While derived from Oregon’s provision, however, Washington’s privileges and immunities clause is not identical to Oregon’s. Article I, section 12’s reference to corporations is not found in the Oregon provision. This difference in language shows our state’s framers’ concern with “undue political influence exercised by those with large concentrations of wealth, which they feared more than they feared oppression by the majority.” Grant County II, 150 Wn.2d at 808 (citing Brian Snure, Comment, A Frequent Recurrence to Fundamental Principles: Individual Rights, Free Government, and the Washington State Constitution, 67 Wash. L. Rev. 669, 671-72 (1992); Jonathan Thompson, The Washington Constitution’s Prohibition on Special Privileges and Immunities: Real Bite for “Equal Protection” Review of Regulatory Legislation?, 69 Temp. L. Rev. 1247, 1253 (1996)).
Moreover, Washington’s constitution was adopted over two decades after the Oregon State Constitution and in the interim important events occurred. First, the Fourteenth Amendment was adopted, providing federal constitutional protection from discrimination under state laws. Second, legislative abuses were rampant — the territorial legislature reportedly passed few laws in 1862-63 but enacted numerous pieces of special legislation; governors were criticized for abusing patronage power; there was criticism of the judiciary due to “absentee judges, political manipulations, and the lack of local control over appointments”; and the “presence of powerful corporations in Washington was often at the root of the governmental corruption.” Snure, 67 Wash. L. Rev. at 671. The history underlying our privileges and immunities clause is not the same as Oregon’s.
Accordingly, although plaintiffs urge that we apply an independent state analysis under article I, section 12 like Oregon’s independent analysis in every context, we decline to do so because our state provision has different language and a different history.

Much worth reading and considering in this main decision, and, from place to place, in several of the associated opinions.

Share on Facebook