DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes.
– Washington Supreme Court, majority opinion p. 6, Anderson v. King County (2006)
Okay. If the Supreme Court’s interpretation is correct, then the initiative proposed by the Washington Defense of Marriage Alliance should pass muster, if it can pass the voters. It does already have initial approval from the secretary of state’s office.
Despite what you might think, this DOMA is not a supporter of the other DOMA – the state Defense of Marriage Act of 1998, upheld for constitutionality by the Washington Supreme Court (in the opinion producing the excerpt above). Quite the contrary, and it makes an emphatic point in response.
For the sake of argument, it argues, let’s take the court’s logic seriously – that the point of marriage is procreation, and this is a legitimate concern of the state. It draws out the implication in three proposed initiatives. (They need a large number of valid signatures to qualify for ballot status; their ability to get them may turn on just how much the voters of Washington embrace irony.) The first of them, I-957, is the most striking.
It would limit marriage only to male-female couples “who are capable of having children with one another,” specifically barring marriage – in case anyone missed the point – “when the parties are unable to have children together for any reason.” After getting married, the couples would have three years to produce (and not by adoption) at least one child, after which they would file with the county a “certificate of marital procreation.”
The initiative continues: “All couples married in this state shall have three years from the date of solemnization of the marriage, or eighteen months from the effective date of this act, whichever is later, to have filed with the state registrar of vital statistics or designated deputy registrar at least one certificate of marital procreation as described in section 11 of this act.” If a married couple moves into Washington, the husband and wife have up to three years to comply and produce a native child.
And if not? The marriage will be “unrecognized,” and no marital benefits of any kind will be allowed. And:
(1) When the state registrar of vital statistics determines that a marriage solemnized in this state has failed to produce offspring as described in section 5 of this act, he or she shall file a petition in the superior court of the county wherein the marriage license was filed requesting that the marriage be annulled on the grounds of failure to fulfill the purpose of marriage. This petition shall include the names and last known address of the husband and wife, the date of their marriage, the date of the deadline described in section 5(1) of this act, and a statement declaring that no certificates of marital procreation have been filed as required by law.
(2) The court shall have thirty days to make a good faith effort to contact the couple and allow them to contest the annulment of their marriage. If the couple can have filed with the state registrar a certificate of marital procreation as described in section 11 of this act showing the birth of a child before the deadline described in section 5(1) of this act, the petition for annulment shall be dismissed. If a certificate is not filed within the time allowed, the annulment shall be decreed.
The remaining initiatives are almost anticlimactic: They “would prohibit divorce or separation when a married couple has children together, and make having a child together the equivalent of marriage.”
Probably some people will sign on thinking this kind of approach is perfectly sound. It follows directly, after all, from the logic the Washington Supreme Court spelled out.
The initiative backers themselves have no such illusions: “Absurd? Very. But there is a rational basis for this absurdity. By floating the initiatives, we hope to prompt discussion about the many misguided assumptions which make up the Andersen ruling. By getting the initiatives passed, we hope the Supreme Court will strike them down as unconstitutional and thus weaken Andersen itself. And at the very least, it should be good fun to see the social conservatives who have long screamed that marriage exists for the sole purpose of procreation be forced to choke on their own rhetoric.”
Petitions will be made available Thursday.
[And a hat tip here to the Slog. In the comments section, one of the initiative proponents discusses it with several commenters, some of whom seem not to quite gotten the point.]
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