"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Off the table

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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