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Edited on Wed Jul-26-06 10:50 AM by kurtyboy
Majority Opinion from Madsen, joined by Alexander and C. Johnson:
"In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution's privileges and immunities clause that is applied under the federal constitution's equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. 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 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.2 Accordingly, there is no violation of the privileges and immunities clause. There also is no violation of the state due process clause. DOMA bears a reasonable relationship to legitimate state interests -- procreation and child-rearing. Nor do we find DOMA invalid as a violation of privacy interests protected by article I, section 7 of the Washington State Constitution. The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex. Finally, DOMA does not violate the state constitution's equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex."
Dissent From Fairhurst, Joined by Chambers, Owens and Bridge:
"In these consolidated cases, 19 gay and lesbian couples petitioned to receive the same right that all heterosexual Washington residents enjoy--the right to marry the person of one's choice. See Clerk's Papers (CP) at 93-130 (Castle v. Washington, No. 04-02-00614-4, 2004 WL 1985215, Mem. Opinion on Constitutionality RCW 26.02.010 and RCW 26.02.0201 (unpublished order) (Thurston County Super. Ct. Sept. 7, 2004)) {hereinafter CP (Castle)}; CP at 876-901 (Andersen v. King County, No. 04-2- 04964-4-SEA, 2004 WL 1738447, Mem. Opinion and Order on Cross Mots. for Summ. J. (unpublished order) (King County Super. Ct. Aug. 4, 2004)) {hereinafter CP (Andersen)}. In each case, the trial court found on multiple grounds that the denial of that right, as codified in RCW 26.04.010(1) and .020(1)(c), was unconstitutional. Yet, Justice Madsen's plurality opinion (plurality) reverses those trial courts based on "{t}he case law" that purportedly "controls our inquiry." Plurality at 59. Neither an objective analysis of relevant law nor any sense of justice allows me to agree with the plurality. The plurality and concurrence condone blatant discrimination against Washington's gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests.2 With the proper issue in mind--whether denying same-sex couples the right to marry will encourage procreation, marriage for individuals in relationships that result in children, or child rearing in households headed by opposite-sex parents--I would hold that there is no rational basis for denying same-sex couples the right to marry. I would hold further that the right to marry the person of one's choice is a fundamental right, the denial of which has historically received heightened scrutiny. It is error to artificially limit the inquiry, as the plurality and concurrence do, to whether there is a fundamental right to same-sex marriage.3 It is equally incorrect to limit the definition of the right to marry to the right to marry a person of the opposite sex. Because the Defense of Marriage Act's (DOMA's) denial of the right to marry to same- sex couples is not rationally related to any asserted state interest, it is also not narrowly tailored to any compelling state interest. Therefore, for both of these reasons, I would affirm the two trial courts in declaring RCW 26.04.010(1) and .020(1)(c) unconstitutional. The plurality uses the excuse of deference to the legislature to perpetuate the existence of an unconstitutional and unjust law."
Concurrence from <right wing wackadoo> J. Johnson, joined by <civil libertarian> Sanders:
"This is a difficult case only if a court disregards the text and history of the state and federal constitutions and laws in order to write new laws for our State's citizens. Courts are not granted such powers under our constitutional system. Our oath requires us to uphold the constitution and laws, not rewrite them. Marriage is the union of one man and one woman, and every Washington citizen has a constitutional right to enter into such a marriage, 1 subject only to limited regulation under the police power (for example, restricting underage or close family marriage). This understanding of marriage has been continuously recognized throughout the history of the United States and of the state of Washington, including Washington territorial law. The unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing has defined the institution at common law and in statutory codes and express constitutional provisions of many states.2 When the institution of marriage was first challenged in the United States Supreme Court through claims to religiously endorsed polygamy, this historical definition of marriage as the union of one man and one woman was confirmed. The same understanding has been confirmed in every subsequent case in that court when marriage has been considered in many other contexts."
Concurrence from Alexander (in it's entirety...emphasis added by Kurtyboy):
"Although many pages of opinion have been written in this case, the issue with which we are here confronted is really quite narrow. The question before us is this: is the provision in Washington's marriage statute, RCW 26.04.010, which clearly states that marriage is between a "male and a female," unconstitutional? Put another way, have the petitioners met their burden of overcoming the presumption that this statutory provision is constitutional? The answer to both questions is clearly "no," for reasons stated very articulately by Justice Madsen in the majority opinion. If we were to conclude otherwise, as do the dissenters, we would be usurping the function of the legislature or the people as defined in article II of the constitution of the state of Washington. I quickly add, though, that there is nothing in the opinion that I have signed which should be read as casting doubt on the right of the legislature or the people to broaden the marriage act or provide other forms of civil union if that is their will."
Dissent from Bridge:
"If the DOMA is really about the "sanctity" of marriage, as its title implies, then it is clearly an unconstitutional foray into state-sanctioned religious belief. If the DOMA purports to further some State purpose of preserving the family unit, as the plurality would interpret it, then I cannot imagine better candidates to fulfill that purpose than the same-sex couples who are the plaintiffs in these consolidated actions. I agree with Justice Fairhurst that the DOMA wholly fails a rational basis review. And, I agree that our nation's jurisprudence suggests we should hold that where a union is not prohibited by age or bloodlines (restrictions grounded in legitimate state interests in the protection of minors and preventing congenital birth defects), it is a fundamental right of an individual to marry the person of his or her choice. Justice Fairhurst also correctly notes that the plurality and concurrences disingenuously frame the question before us. Dissent (Fairhurst, J.) at 2. They ask not whether the right to marry is fundamental, or whether a prohibition on same-sex marriage strengthens the putative state interest in the frequency and longevity of heterosexual marriage (a dubious policy clearly at odds with our liberalized laws of marital dissolution), but whether there is a fundamental right to "same-sex" marriage. Just as the United States Supreme Court majority did in Bowers v. Hardwick 20 years ago, today's plurality and Justice J.M. Johnson's concurrence frame the issue before us so as to ignore not only petitioners' fundamental right to privacy but also the legislature's blatant animosity toward gays and lesbians.
Dissent from Chambers, joined by Owens: The lead opinion concludes plaintiffs have not established "that they have a fundamental right to marriage that includes the right to marry a person of the same sex." Lead opinion at 5. Because the lead opinion concludes that no fundamental right is implicated, the rest of its discussion on article I, section 12 is unnecessary and dicta. Our state privileges and immunities clause provides:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."
<snip> "Although the lead opinion cites authority for its conclusion, I disagree with both its approach and its determination that the authorities cited lead naturally to its conclusion. The fact that we have taken this approach during the infancy of our interpretation of the clause does not turn it into the law of this state. Our constitution demands a deliberative process. We should not abdicate our responsibility to interpret Washington's constitution to the judicial branch of a different government, let alone defer to an interpretation of a different clause of a different constitution. Because, by its plain language, history, and structure, article I, section 12 applies to any privilege or immunity granted by the State on unequal terms and because I continue to believe, as we held in Grant County Fire Protection District No. 5 v. City of Moses Lake, 150 Wn.2d 791, 806, 83 P.3d 419 (2004) (Grant County II), that our constitution protects the privileges and immunities of "all citizens," I write separately."
(NOTES: Owens, Alexander, and Chambers are up for re-election this year---Their races will likely be decided in the Primary on September 19th--Kurtyboy)
ON EDIT: Added Alexander's short concurrence
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