Writings and observations

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?

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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.

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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.

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