Galois

ERA in Washington

On March 8 the Washington State Supreme Court will hear oral arguments in two same-sex marriage cases.  In both cases the lower courts ruled that Washington's state DOMA violated the state constitution and that same-sex couples had a right to marry in Washington.  In the first case, Andersen v. King County, eight same-sex couples, represented by Lambda Legal and the Northwest  Women's Law Center, filed suit against King County (which includes Seattle) because they were denied marriage licenses.  Judge William Downing ruled (pdf) that the fundamental right to marry includes the right to choose whom to marry and the state had no rational, let alone compelling, interest in restricting that right here.  In the second case, Castle v. State, eleven same-sex couples, represented by the ACLU of Washington, similarly filed suit against the state.  In that case Judge Richard Hicks ruled (pdf) that by not allowing same-sex couples to marry the state was violating the Privileges and Immunities clause of the Washington State Constitution again as there was little in the way of state interests for the ban. 

Both judges noted that it would seem quite possible that the state Equal Rights Amendment might also forbid the restriction, but they were bound by an earlier 1974 decision Singer v. Hara (pdf) of an intermediate Washington court which ruled that since marriage was by definition between a man and a woman there was no discrimination.  They also both noted that said decision has come in for much criticism for failing to engage in any analysis and based on more recent cases seemed to be on shaky ground, but they were still bound by it.  They practically invited the State Supreme Court, though, to overturn that decision.  The Court will certainly have that opportunity when it renders its decision on these cases sometime in the coming year. 

I am a firm believer that denying same-sex couples the right to marry makes an impermissible classification based on sex and is hence unconstitutional in almost the exact same way the California Supreme Court in 1948 found racial classifications in marriage impermissible.  (See my post on Perez v. Sharp or my posts on sex discrimination).  Some people, like Professor Jack Balkin, feel this argument has a disadvantage in that it's not really sex discrimination but rather sexual orientation discrimination.  Well, there is a great amicus brief being (pdf)  filed in the Washington cases by NOW and other women's rights organizations that explains how sex discrimination and sexual orientation discrimination are linked and how denying same-sex couples the right to marry is detrimental to all who wish to be free from traditional gender stereotypes.  I am hopeful the court will make use of this brief to strike down Singer. 

[For more information on the numerous amicus briefs filed in support of the couples see this press release from Lambda.]    

Real People and Their Lives

I actually enjoy reading the legal briefs that are filed in same-sex marriage cases.  Something about how the attorneys present the case in a logical orderly fashion with supporting case law appeals to me.   At the end of this post I'll provide links to some of the briefs filed in recent cases in Massachusetts and New Jersey.  Sometimes it's easy to forget, though, how these cases greatly affect the lives of the people involved.  People who are trying hard to protect their families.  So today I went back and read about the families in Massachusetts who fought long and hard for marriage rights, and the families in New Jersey still struggling for this protection.  The complaint in today's case of Andersen v. Sims filed in Washington tells us a few things about each of the six plaintiff-couples and their respective families continuing the fight in that state.  And thousands of couples have been able to marry recently in San Francisco.   One family that took advantage of this wonderful opportunity was the Lathe-Berryessa family.  You can read about their wedding day as well the rest of their everyday joys and struggles in parenting at their journal, Daddy, Papa & Me. 

There are those that say these families must somehow earn this protection that others take for granted by convincing state legislatures to amend the laws.  (And then they must convince the legislature of every other state to which they may someday travel or with which they may have some legal contact.)  It's important to realize that even the limited protections families have been able to win in a few legislatures would not have been possible without the lead of the courts.  Such was the case in the civil rights struggle of the 1940's-1960's as well.  Judges are required to read, in detail, both sides of the case.  They take seriously their allegiances to past precedents and their constitutions.  These judges are not the tyrants some have made them out to be.  State legislatures, on the other hand, will often simply  avoid the issue because of political expediency. 

Below are a few of the briefs from recent cases Massachusetts and New Jersey (to simplify things I have labeled the briefs as either pro or anti SSM instead of plaintiff, appelant, etc.):

• Pro-SSM in MA
  
• Anti-SSM in MA
  
• Pro-SSM in NJ
  
• Anti-SSM in NJ
  
• Pro-SSM Amici in MA
  
• Anti-SSM Amici in MA