The Day After Handing Down the DOMA Decision, Chief Justice Gerry Alexander, Sat Down with The Stranger
Chief Justice Gerry Alexander, in His Own WordsFULL TRANSCRIPT
DAN SAVAGE: We have a lot of problems with Barbara Madsens decision that you agreed with, from gay and lesbians not being a suspect class and pointing to the evidence that we could, after 30 years of struggle, get a civil rights bill passed somehow, catch-22, proof that we dont need those protections or that were not a suspect class because were politically powerful enough after 30 years to get the civil rights bill passed. I want to jump to the part of the decision thats about marriage and children. The role between procreation, marriage, and child-rearing, which is a phrase you guys use, Im a gay parent, we try to avoid that phrase because people laugh. So Im a parent, I have an 8-year-old adopted child, heres his picture. (places picture on table) The state signed off on our adoption, the state made us parentsme and my boyfriend. How is it fair to my child, how is it not an equal-protections violation of his rightssetting aside my rightsnot to have married parents. How does it protect marriage or make it more valuable to straight parents if their kids are protected and my kids are not? How is it fair to this kid that he cannot have married parents, if married parents are so important to the safety and welfare of children?
CHIEF JUSTICE GERRY ALEXANDER: Well, Im not laughing at anything you say. But, I said this earlier, but I dont know if you were in the room, I have to be pretty circumspect in what I say here because this matter is technically still in progress and you may think this is cop-out, but its really not The party in any case has 30 days in which to file a motion to reconsideration. I would be astounded if we didnt get a motion of reconsideration from this party. So the matter is still before me and really all I have to say is
THE STRANGER: We couldnt shut Susan Owens up about it. The matters still before you, but youve got a public opinion here, you filed an opinion. Maybe what were asking you to do is elaborate
I dont know if this is an interview or an inquisition but what I said in my opinion, Ill stand by it. I wrote a one-page opinion, a concurring opinion, and I decided to do that, frankly, although I signed Justice Madsens opinion, I didnt really need to, but I did it because I thought with so many pages of opinion, I thought people might be confused about what the issue is or what we are not saying. And I simply said that the issue before us was whether the Defense of Marriage Act passed by the legislature was unconstitutional. And the burden is on the party seeking to show the statute is unconstitutional. There is a presumption that statutes passed by the legislature are constitutional. We have to be convinced beyond a reasonable doubt that it is unconstitutional before we can strike it down, so were slow to do that. In all cases, we do, all things being equal, we tend to defer to the legislature, and she indicated in her opinion that the statute survived the constitutional challenge and I said that I agreed with that. I thought that the answer to the question, Is it unconstitutional? was no. I said if we conclude otherwise, in my view, we would be usurping the function of the legislature or the people because the people can act in the legislature by initiative.
The judiciary historically has a role in protecting minority rights. And you guys sort of went out of your way to declare gays and lesbians not a minority, homosexuality not an immutable characteristic, gays and lesbians not a suspect class. Gay legislators that Ive spoken to today believe your decision might undo the Gay and Lesbian Civil Rights Bill.
Well, we didnt say that. In fact, since Ive been on this court, weve passed the court rule, under the rules of professional conduct that relate to lawyers, indicating that it would be an act of professional misconduct to discriminate against an individual based on their sexual orientation, we did that before
Right, so does the [Washington State] Supreme Court have a role to play in protecting minority rights or do you defer to the legislature as it runs roughshod over minority rights?
Justice Madsen said, and Im quoting from the plaintiff, Have not established that they are a member of a suspect class or have a fundamental right to marriage.
So you agree with the belief that the ultimate proof of us not being a suspect class is that we could get the Gay and Lesbian Civil Rights Bill passed to protect us from discrimination?
Nobody cited us a case that indicated that, for purposes of analysis of our privileges and immunities clausewhich we say we interpret the same as the federal equal protections clauseno on cited a case to us and we could find none that said they are members of a suspect class or have a fundamental right to marriage. And I agree with that, I know thats not popular in this room, but thats I dont know what else I can say; I agree with Justice Madsen.
Do you think sexual orientation is an immutable characteristic or a choice?
(Eight-second pause) I suppose the preponderance of the evidence is that its an immutable characteristic. But I dont quite agree with the
The decision you signed off on says it was not. Do you think the plaintiff made a mistake in not bringing up evidencescientific studies, expert testimoniesclaiming that it is an immutable characteristic?
I suppose the preponderance of the evidence is that it is an immutable trait. But youd have to ask I dont know
Im just curious what you think.
This really isnt an interview. Youre really just
Its a coinkidink! We scheduled these interviews and then
And I came up here and I recognized that Id be about as popular as the plague here, but I came nevertheless.
But youre a tough guy, right? You can take it.
Im a big boy, Im a big boy. I did go on to say in the concurring opinion that I wrote that I didnt want people to conclude that because of what we said, that we were cascading doubt on the ability of the legislature to broaden the definition of marriage or for the people to do that, for that matter, to do provide for other forms of civil unions if that was their will.
If the legislature passed a law that made inter-racial marriage illegal in Washington State, if Loving v. Virginia didnt exist, you guys would defer to the legislature on that?
No, because racetheres all kinds of case law that race is a suspect class.
Why arent [homosexuals] a suspect class? If youre referring to Madsens opinion, do you agree with it? Explain to me why gay members are not a suspect class. The evidence cited in the paper is the Gay Civil Right Billcatch-22, as Dan saidI just want to know.
Youre asking me to do things that are really against the code of judicial conduct. Weve written an opinion, weve put it down in writing and you want me to sit here and argue it and Im not going to do that. Weve got the potential of a motion for reconsideration. Im absolutely certain well get a motion for reconsideration. Id beregardless of what you say about how Susan Owens conducted her interview, I have my own code of conduct. Im just not going to do that. Im not going to get into an argument about a decision we made two days ago and published already.
Im not looking to argue, Im literally looking for an explanation. I want you to explain that piece to me.
Ive said what Ive said in writing on it.
Later in the interview
THE STRANGER: Justice Madsens decision that you signed off on the other day says, Children tend to thrivethis is just like an opinion from nowhereChildren tend to thrive in families that contain a father, mother and their biological children. A month ago the American Academy of Pediatrics wrote, Theres ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. Over 25 years of research has documented that there is no relationship between parents sexual orientation and any means of a childs psychological, social, or behavioral adjustments. How could you sign off on that statement, children tend to thrivethis conjecture, this prejudiced conjecture that has no basis in factin Madsens opinion? Do you agree with that?
DAN SAVAGE: You say they that they tend to thrive? Youre implying that they do not thrive, theyre less likely to thrive in a same-gender parent household. I think my kid is doing a little better than Andrea Yatess kids at this moment.
Well theres no question about that.
THE STRANGER: So how can you sign off on that?
I felt under the standard of review that we employ here that there was a rational basis for the determination that the legislature made. That, then
You think its rational for the legislature to conclude that, based on all the evidence?
I think the legislature concluded that; that doesnt mean that they cant make other conclusions in the future. But that, I think that there is a rational basis to make that.
Is there any point at which judicial restraint is too much? You can say that almost anything is rational by this standard. You basically say in the decision that if the legislature can tell itself that its rational, its rational, right? Thats your standard right now, correct?
It is the standard that is most protective of the legislative process, no question about it. Which, I know you disagree with me, but if we had concluded that we were talking about a suspect class here, then youd have a different test.
It seems you went out of your way to declare gays not a suspect class to avoid having to cease deferring to the legislature on this issue. The facts
Its not out of the way; that was our conclusion, she says it right up front. The plaintiff has 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. I wont beat around the bush: If you ask me, Is that my view? I thought she was right in saying that.
DAN SAVAGE: Do you think I have an equal protections case if I brought a lawsuit, not on behalf of my right to be married, but on my childs right to have married parents? Your entire decision is based on this argument that children are protected and need married parents, that marriage is for children and parents should be married. The state gave me this child, the state made my boyfriend and I co-parents of this child out of infancy. And the state is saying this child doesnt get to have married parents. This childs parents that we gave him dont get to be married, because were going to defer to the legislature as it makes up bullshit about gay people that has been disproved by 25 years of empirical research. Were going to defer to that.
Well, the legislature can change its mind.
Well do you think he has a case? Should I hire a lawyer? Should I hire him?
Hes a wonderful looking child. I I Im not sure I understand the question exactly.
Well, why do some children have the right to married parents and some children do not? Why is this child being unfairly penalized for the parents that he has that the state gave him? They played a role in creating his family. Marriage is crucial to the well being of children and then denying this childs parents the right to marry This child whose parents exist because of the state!
It isnt really the court saying [that]; the court is saying, was there a rational basis for the legislature to make that determination? There may be other decisions the legislature can make that we might say.
If I get hit by a bus, he has no right. He doesnt get to inherit my social security, doesnt get to inherit property. Theyll both be destitute. Courtesy of the State of Washington.
Well, he can inherit your property, you can make a will.
Oh, Ive made a will; hell inherit my property after he pays gift tax on it.
Even if we had gone the way youd like us to on this case, it wouldnt affect the social security because thats affected by
I know, I know, I know.
Rights of property can be determined by will.
Yeah, and wills can be disputed by family, as often is the case in gay and lesbian relationships. He will not be able to inherit my property without paying massive tax penalties on it, unlike married heterosexual parents. So this child will be at a financial disadvantage all his life. Ive made a will but hes not my spouse, he cant just have my property, he cant just have the house.
If he was 21 years old, if he was 15 and inherited your property
Im talking about my partner here
Oh, Im sorry, I thought we were talking about the youngster.
Hell have to pay taxes on it because Ive given him the house, because we have no relationship. And that can be disputed by our families. Marriage creates an ironclad social agreement. Its not possible. Unless I was a bazillionaire, like George Michael But getting back, dont you think the state is discriminating against this child? The state has now declared that marriage is all about children. Heres a child, the state gave me this child, the state created parents for this child and now the state will not let those parents to marry.
Im not gonna back up on it. I believe that the court was right, I said so in the opinion and I stand by it.
THE STRANGER: You didnt think that hard about it really. You didnt take the existence of gay and lesbian parents into consideration.
Believe it or not, we take our job seriously. We spent a lot of time thinking, had this case in front of us for 15 months.
Well in having this conversation, it sounds like this is a lot of new information for you. It also sounds completely circular. We couldnt rule that way because we thought you were in a suspect class, we thought you were in suspect class so we couldnt rule this way, and the rationality of the legislature and we determine not a suspect class. The weakness in this whole circle is the rationality of the legislature. What is your understanding of their rational? Can you even restate it?
I agree with Justice Madsen; she states it right up front. We talk about them not establishing that theyre a member of a suspect class or having a fundamental right. She goes on to say the legislature was entitled to believe, now maybe they can believe. Were reviewing what the legislature does, the legislature was entitled in limiting marriage to opposite-sex couples for procreationfor the survival of the human race[and] to encourage the well being of children by encouraging families where children are raised by the childrens biological parents. Now it might be rational for a future legislature to determine that definition of marriage should be broadened. Were saying, it was rational for them to say that.
The evidence that exists right now shows that that is not a rational decision. There are children that the state has taken away from biological, heterosexual, opposite-sex, married parents and given to gay couples! In Washington State!
There may be disputed evidence of that, but if theres evidence on both sides of that, its generally considered rational for a legislative body to accept one view or the other. And were not supposed to substitute our
Where can we put the evidence showing that gay and lesbian parents are less fit than heterosexual parents? There IS none. So how is it rational to conclude that?
I think, there is a body of evidence
Well where is it?
Well I dont have it at my fingertips
Well it wasnt in any of the court records, it wasnt in any friends of the court briefs, its not in your decision, you dont point to it anywhere, you just pull out of thin air that somebody said this, the legislature said it, so it must be true. Because no legislature has ever said anything boneheaded before. Isnt it circular? And at what point do you stop? If the legislature passed a law that saying that the Earth, you know, the Earth, revolveswhats the opposite of what happens? That the sun revolves around the Earth, right? Pre-Copernican Awareness Act or whatever. Its rational cause you watch the sun go across the sky, were at the center of it. You know, would you stop that at some point?
Obviously, the example you use, nobody would say theres a rational basis for that. You might be able to find someone on one of these blogs or something
But, look, the rationality in that statement I just gave you is the same as the rationality that gay people are bad parents. Because I look at the sky and I see the sun going across and I think Im the center of the universe. And I look at gay people and I have a sort of revulsion, so I think that theyre not good parents. Its the same bizarre observed, inferred rationality. In other words, there is no rationality.
Im feeling really uncomfortable about this. But I hope youll at least respect the position of a judge. Were not supposed to even have ex-parte contact. Youve really brought me in here today and I dont blame you, Im not mad about it.
It was a coincidence! It was all scheduled
I understand that. I came in here with my eyes wide open and this has really evolved into attempting to change my mind in the case of a motion for reconsideration than to find out what I think.
But if youre starting to think about these things that are new
You say that. I think Ive thought about it before.