Well, I’ve read the main opinion by the Washington Supreme Court stating that the legislature is empowered to limit marriage to opposite-sex couples. I have to say – although I disagree with the ruling (primarily on the issue of fundamental rights), the three justices who signed onto the main opinion go out of their way to be respectful of gay relationships. (Except for granting them any rights, of course.) This decision is much better written than the recent New York decision, which came out a mere month after oral arguments and appeared to have been a rush job. This decision took 17 months.
Basically, the decision says, “Gay marriage would probably be a good thing, but as judges our hands our tied.” For instance, the court acknowledges that the lack of the marriage option for gay couples can be harmful to them:
We do not dispute that same-sex couples raise children or that the demographics of “family” have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. …
We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person’s property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.
In its conclusion, the court states that “given the clear hardship faced by same sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”
Some other points:
Washington Supreme Court justices are elected, not appointed. That might have had a bearing on the outcome.
Interestingly, the court states that the plaintiffs didn’t ask the court to consider civil unions or the rights inherent in marriage, but merely to consider marriage or nothing. If that’s true, one can ask whether that strategy was a good one. Still, I’m pretty sure that courts aren’t limited to considering the narrow issue before them, and this court could have ruled for civil unions if it was so inclined. Instead, it appears to have been very cautious.
The opinion singles out the author of the concurrence, Judge James Johnson, four times for criticism. The concurrence is somewhat more hostile in style, and the concurring judge refers to one of the dissenters as “paranoid.” (Judge Johnson also cited a discredited study finding that same-sex relationships don’t last as long as heterosexual relationships; it’s been pointed out that such studies don’t take into account the fact that marriage is not available to same-sex couples.)
In sum: while I’m not happy with the main opinion, at least it’s not mean.
What’s next? The forthcoming New Jersey opinion. Things are not looking good this summer for court-granted gay marriage. Legal strategies are bound to change and focus more on state legislatures, which haven’t been accepting of gay marriage.
At least the decisions of the Washington and New York courts show strongly why a Federal Marriage Amendment is unnecessary.
I did not have time today to really read the majority opinion, or the concurrences, or any of the dissents, as they are quite lengthy and…well, my job at The Homosexual Agenda is not really pertinent to legal or policy aspects, alas. But on the brief glance I was afforded, yes, you are correct that the Washington decision is MUCH better written than the New York ruling, and it seems that their conclusions are more solidly based on sound interpretation of precedent and the proper deference courts should show a legislature…EXCEPT that all of this is predicated on their acceptance that encouraging heterosexual procreation within marriage is a legitimate government interest that same-sex marriage would somehow adversely affect.
They go to great lengths to explain why no special scrutiny is required for this issue (as did New York, as did Nebraska), merely “rational basis,” and then they come up with a justification that defies rationality altogether.
ARGH. From my homestate, no less! Sadness.