In 1790 George Washington declared, “As Mankind becomes more liberal, they will be more apt to allow that all those who conduct themselves as worthy members of the community are equally entitled to the protections of civil government. I hope ever to see America among the foremost nations of justice and liberality.”
In its sharply divided 5-4 ruling last week, the State Supreme Court fell short of Washington’s principle of fairness, failing, for now, to end the exclusion of committed gay couples and their kids from marriage, with all its protections, security, and meaning.
What’s to be said about the court’s ruling?
It was a splintered court—four justices joined powerful dissents (Justice Bridge’s and Justice Fairhurst’s dissents are must-reads.) A three-justice plurality applying the wrong standard of review—one that was undeservedly, hopelessly, and self-fulfillingly deferential—was joined by two justices in a fiery anti-gay concurrence, making up the margin of defeat.
Although the plurality opinion contains several silver linings (notably a plea to the legislature to address what the authors acknowledge are the deep hardships gay couples and their kids face through the denial of marriage), it is deeply flawed for several reasons:
First, given the stakes, the importance of marriage, and the importance of treating all people in Washington equally, it was a fatal error for the plurality to apply what they themselves conceded was the lowest possible level of scrutiny to the state’s discriminatory action. Real scrutiny is warranted when there is a discriminatory classification such as exclusion based on sex or sexual orientation, or the denial of a fundamental right such as the freedom to marry, but the plurality chose to apply instead a rubberstamp requiring virtually no showing of a substantial, or even real, justification by the government. If marriage is a fundamental right for non-gay couples, why not for committed gay couples?
Under this inappropriate minimal review, the plurality said that the exclusion from marriage does not violate the constitution because of now-familiar but unsubstantiated “rationales” related to procreation and parenting. “The legislature could have found that encouraging marriage for opposite-sex couples who may have relationships that result in children is preferable to having children raised by unmarried parents,” conjectured the plurality. “Children tend to thrive in families consisting of a father, mother, and their biological children,” they wrote.
Never mind that marriage, clearly, is not just for the procreative, and that even U.S. Supreme Court Justice Antonin Scalia has repudiated these particular “rational bases” as sufficient justification for denying marriage to same-sex couples. Never mind that that the interest in supporting kids and promoting stability for families in fact also applies to gay couples and to the kids that happen to have gay parents—and that the expert consensus on gay parents and the best interest of their kids is overwhelming and unrefuted. Less than a month ago, the American Academy of Pediatrics weighed in once again with an authoritative statement titled “The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children.” The nation’s kids’ doctors know best—and here’s what they said:
“There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with one or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families.”
Moreover, even if it were true that there were some rationale in favor of marriage for the procreative, and even were it true that somehow different-sex parents were “better,” how does keeping gay couples and their kids out of marriage promote anything? Allowing opposite-sex couples to marry may be in the best interests of children with heterosexual parents, but, as the dissent put it, “denying same-sex couples the right to marry has no prospect of furthering any of those interests,” and, in fact, only punishes the kids of gay parents for having the “wrong” parents.
The illogic of the rationales—the lack of connection between the purported end and the discriminatory means—alone should have established the ban’s unconstitutionality even more solidly than the weakness of the rationales themselves. Add to that the double standard (marriage is so important, a fundamental right even, when it comes to heterosexuals, but the denial of marriage to gay people is somehow trivial and warrants minimal, indeed no, scrutiny) and what results is no more than a refusal to enforce the constitutional safeguards against the unfair treatment of some. Finally, as the dissent pointed out, the plurality (let alone the more extreme concurring justices) turned a willfully blind eye to the animus beneath this exclusion and the discrimination it inflicts and perpetuates, as manifested by the anti-gay campaign to shove the so-called “defense of marriage” ban into law.
The court’s decision means that the pointless exclusion from marriage will continue to be an obstacle in the lives of numerous families, even as the struggle to end discrimination in Washington now shifts to the legislature and the court of public opinion.
By 5-4, these judges failed to do their job. Now the legislators and governor must do theirs, acting to end this discrimination, while we do ours, speaking out about who gay families are and why marriage matters. I have previously written about how to make the case for ending marriage discrimination (“Just Say No to Civil Union,” Oct 20), and more resources can be found at www.equalrightswashington.org and www.freedomtomarry.org. It is crucial that we put names and faces on the families the court let down, and connect the dots clearly to marriage, so that the politicians understand the need to end discrimination. After all, even the plurality noted the hardships the exclusion from marriage causes couples in Washington—and urged the legislature to act.
The close but ultimately disappointing ruling from the WA Supreme Court was just the latest in a barrage of blows over the past few weeks, and our march to fairness is no doubt treading through a particularly rocky patch. Quite understandably, people are beginning to feel, in Tom Lehrer’s words, “like a Christian Scientist with appendicitis.” But as I say in my book Why Marriage Matters, the classic American pattern of civil rights advance is patchwork, and social justice movements go through periods of creeping as well as leaping. When we look past the rocky patch to where we’ve come from, and look ahead to the advances still to come, there is ample reason for hope and equal reason for redoubled determination.
Think about it: We went from zero votes the last time Washington couples seeking marriage appeared before the state supreme court to 5-4 now. An end to marriage discrimination shimmers close within reach in states such New Jersey and California—and meanwhile we continue to advance in the court of public opinion, even as our opponents use against us everything they have—a president, a pope, Rovian bands of attackers state by state, and millions of dollars from the anti-gay industry aligned too closely with large parts of a political party’s apparatus. With some notable exceptions—voices such as those of Mayor Greg Nickels, County Executive Ron Sims, some clergy, some civic groups, family experts—too many allies and elected officials, too many people of good will, have so far remained silent (or taken refuge in evasions that they know make no sense). Silence and evasions not only disserve the state and gay families, but also politicians’ self-interest; they will never be anti-gay enough to satisfy the opposition, and might as well stand up for what’s right and earn the respect of the reachable middle. Don’t bargain against yourself; rather, make the case for fairness and families. After all, the court’s opinion showed that there is no good reason (even if it found a rubberstampable one) for denying committed couples and their kids the legal commitment of marriage.
We cannot accept the right’s invitation (or that of some of our “friends”) to declare our fight over and slink away. And we should not let our politicians off the hook by saying it can’t happen here in Washington or that it will take forever; you don’t rally people to action or hold politicians accountable by declaring at the outset that your goal is beyond your reach. The work ahead will entail organization, outreach, lobbying, education, and supporting candidates who are for marriage (and replacing those who are not).
Judges and politicians who don’t do the right thing now will feel deep shame at their abdication in this moment of history. So will we—unless we move now to nudge past 5-4 to a full victory, ending the exclusion from marriage and creating a community of equality, liberty, and justice for all, just as Washington envisioned.
Evan Wolfson is executive director of Freedom to Marry, the gay and non-gay partnership working to end marriage discrimination nationwide, and author of Why Marriage Matters: America, Equality, and Gay People’s Right to Marry.