Thursday, July 27, 2006

Well, that didn't take long...

Only six pages into the Washington Supreme Court's majority's opinion:

The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature's decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA (Defense of Marriage Act) 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.
The emphases are mine. Notice the Washington Court's using the old "one man-one woman is best for kids" model and that "marriage is for making babies" argument.

Still reading...

Okay, something interesting here. The Washington Supreme Court's claiming that the "rational basis" standard applies because, under Washington law, the "Strict Scrutiny" standard only applies if the law in question applies "positive favoritism to a minority class." That is, that under the law in question a minority receives some special benefit not available to the rest of society. Naturally, the minority in this case (homosexuals) isn't seeking some special benefit, but the same benefit available to opposite-sex couples. Ironically, anti-gay marriage homophobes often claim that gays wanting to marry are seeking what they call "special rights."

Looks like the plaintiffs were in a quandry. Either they argue they want identical rights to those of heterosexual marriages and lose, or they argue they want "special" rights...and lose because how can being considered married be considered a "special right" if heterosexual couples can do it all the time?

More on the "rational basis" analysis: Page 25 of the majority opinion says:

The fundamental right to marriage "is part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause." (citations omitted) While the State agrees that marriage is a fundamental right, it says that it does not include same-sex marriage. Plaintiffs maintain that they have the fundamental right to marry the person of their choice.

The court goes on to argue that most often, fundamental rights are established by history and tradition. Homosexual marriage doesn't meet this standard because, naturally enough, history and tradition barred gays from marrying. Seems like a vicious cycle.

Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing."

Again with the "marriage is for making babies" argument.

Reading on...

I've seen this one before. The Washington Supreme Court is arguing that sex discrimination is fundamentally different from discrimination on the basis of sexual orientation.

(In order to conclude Washington's DOMA should be subject to strict scrutiny analysis)
(W)e would first have to find that DOMA discriminates on the basis of sex and then conclude that the right to marriage is violated because of the restriction due to sex discrimination. However, as the state urges, DOMA treats men and women the same.

The plaintiffs also contend, however, that DOMA is embedded in sexism just as much as miscegenation laws were based on racism. Plaintiffs urge that keeping marriage as an exclusively heterosexual institution is based on gender-role stereotypes and exclusion of those who do not conform to them. This argument is unpersuasive. FIrst, there is nothing in DOMA that speaks to gender stereotyping within marriage. Such stereotyping as exists does so apart from DOMA. Second, Plaintiffs fail to show that gay and lesbian persons are excluded from marriage on account of or in order to perpetuate gender stereotyping.

The New York Court Of Appeals made the same argument. Prohibiting gay people from marrying affects gay men and gay women equally, so it's not sex discrimination.

Sooo....if a woman gets fired from her job for being a woman, would her firing be okay if she was a LESBIAN woman?

This opinion appears to be BEGGING to be overturned. By my count, the majority opinion mentions four times that the ultimate decision rests with the legislature. The majority also mentions at least five times that only the tiniest shred of rationale justifies the "rational basis" standard.

One final point, and then I'll let this rest. In Loving v. Virginia, the U.S. Supreme Court said the right to marry was a fundamental right, and that anti-interracial marriages are unconstitutional. In Lawrence v. Texas, the U.S. Supreme Court held that anti-sodomy laws were unconstitutional.

So: Consenting adult heterosexuals can marry whomever they want...
and consenting adult homosexuals can have sex with whomever they want...
but consenting adult homosexuals can't MARRY whomever they want.

Makes perfect sense.


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