Is there a rational reason to prohibit gays from getting married? That's a question that hasn't been answered very well, judging by the briefs in the history-making gay-marriage case to be heard by the state Supreme Court on March 8. Under many circumstances, rationale is all that's needed to defend a law in court; if there is a rational basis, courts are supposed to defer to legislators. It's the very least the state needs to defend the Defense of Marriage Act, which limits marriage to a union between a man and a woman and was declared unconstitutional in two stunning lower-court rulings only weeks apart last summer.
All the parties involved have now filed briefs in the consolidated appeal of those two cases, Andersen et al., v. King County and Castle v. the State of Washington, initially heard by Judge William Downing in King County Superior Court and Judge Richard Hicks in Thurston County Superior Court, respectively. The briefs—from the state and King County, both defending the Defense of Marriage Act; from two groups of gay and lesbian couples suing for the right to marry; and from a group of opponents to gay marriage, including 36 ministers—offer a look at the arguments that will be central to the case.
You would think that prime among them would be the rationale for the law in the first place. Yet despite 50 pages of legal jousting in the opening brief submitted by the state attorney general's office, there's hardly any space devoted to explaining the required "rational basis" for the law. One sentence seems to be attempting this: "Courts have noted that partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed."
It's an odd statement, full of presumption and Big Brother–ish implications. The state expects exclusivity and kids. It's clear from the back-and-forth in all the briefs that children are the key here—the ability of spouses to procreate being, in the state's view, a defining characteristic of marriage. But as pointed out in the brief filed on behalf of 11 Thurston County gay and lesbian couples by the American Civil Liberties Union of Washington, that argument "discounts all same-sex couples who bear and raise children and all opposite-sex couples who marry but never intend to (or cannot) bear children."
There is more to the state's argument than that. By phone, William Collins, the senior assistant attorney general who is handling the case, indicates that what's at issue is the state's interest in marriage, which, he says, "is to provide a system for taking care of children." He contends that the state sanctions marriage to encourage men and women to have kids, even though some couples do not. The state is not obliged to encourage gays and lesbians to have children, he says, though some couples do.
Still, the explanation seems unsatisfactory, dancing around any grounds the state might have for encouraging heterosexual couples to have kids but not same-sex couples. In a way, the rationale would be stronger if it disparaged the child-rearing capabilities of gay and lesbian couples. That is done, subtly, by King County's opening brief, which holds that the idea behind the Defense of Marriage Act is that, "as a general rule, children tend to thrive in families consisting of mothers, fathers, and their biological children." More bluntly, the brief filed by the group of gay-marriage opponents deems the family setting provided by same-sex couples sub-"optimal." According to the gay-marriage opponents, "children not only fare better when their biological parents raise them, but they need intimate contact with both halves of humanity, male and female." The brief cites research on kids from fatherless homes who have all sorts of academic and behavioral problems. As the other side notes, though, that research primarily concerns children of divorced and single parents, not gay and lesbian ones. "Of course, the plaintiffs want to marry, not divorce," quips the brief, filed on behalf of eight King County couples by the Northwest Women's Law Center and the Lambda Legal Defense Fund.
Then again, the King County plaintiffs are also on dubious ground when they claim, in a footnote, that "it is beyond reasonable scientific dispute" that children of same-sex couples fare just as well as their peers. Though there are studies that make this assertion, there has, of late, been quite a bit of scientific dispute about how rigorous those studies have been.
The state, though, doesn't get into this fuzzy and politically explosive terrain. At least not the state as represented by former Democratic Attorney General Christine Gregoire, who is now governor. Gay marriage opponents feel Gregoire mounted a weak defense. Now the attorney general's office has a new boss: Rob McKenna, a Republican who has pledged to vigorously defend the Defense of Marriage Act. It's uncertain whether he will beef up the state's rationale for the law. Circumspect, McKenna notes that the case has "already been briefed" and calls Collins "very highly regarded," which suggests little in the way of dramatic changes. He says, however, "I'm going to read the briefs with fresh eyes."
Depending on how the court views the case, it might present more of a challenge for his office than just coming up with a passable rationale. In certain circumstances, the court is obliged to take a closer look, to make sure that there is not only a reason for the law but a compelling state interest to have a law, and also that it passes constitutional muster. In this case, that would mean meeting principles of equal rights, liberty, and, by virtue of this state's Equal Rights Amendment, freedom from sex discrimination.
One of the circumstances that would trigger this heightened scrutiny is if a law affects what is called a "suspect class." It's a deceiving name, referring not to a suspicious group of people but a group that arouses suspicion by being singled out. As the U.S. Supreme Court once explained, classifications based on "race, alienage, or national origin"—the classic suspect-class categorizations—"are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. . . . " The state Supreme Court must now decide whether gays and lesbians qualify as a suspect class.
Just what constitutes a suspect class is a murky matter. The courts have come up with a set of criteria that in large part deal with whether a group is a bona fide minority—with "obvious, immutable, or distinguishing characteristics"—and whether the group has suffered discrimination. The opponents of gay marriage posit rather comically in their brief that gays and lesbians don't measure up because "labels such as 'homosexual' are self-proclaimed." (You know, they can change sexual preference at any time, and why don't they?) More credibly, Collins, of the AG's office, points out that judges have been reluctant to throw the suspect-class label around. Neither elderly nor disabled people have won the dubious honor. Nor have gays and lesbians in a body of case law—not even in Vermont, Massachusetts, or Hawaii cases that were decided in favor of gay marriage.
But Judge Hicks of Thurston County, building on a maverick decision in a 1998 Oregon appeals-court decision, awarded the status to gays and lesbians. His ruling created waves of jubilation and horror, depending on where people stood, because it has the potential to afford gays and lesbians special protection, not just in the marriage arena but in all aspects of the law—for instance, rules relating to employment. The Supreme Court now has a chance to solidify or reject that view. "There's a lot riding on this," says Cedar Park Assembly of God Pastor Joseph Fuiten, a gay- marriage opponent and one of 36 ministers who have filed a brief in the case.
It will also be interesting to see whether the Supreme Court goes along with another radical finding, this one by both Hicks and Judge Downing of King County, that the Defense of Marriage Act impinges upon a "fundamental right." Such a finding also triggers the toughest level of review for a law.
All the parties recognize that marriage itself is a fundamental right. The courts have made that plain for years, defining a fundamental right in part as one "deeply rooted in this nation's history and tradition." The state and gay marriage opponents claim, however, that what's at issue is not marriage itself but a new breed of "same-sex marriage," which, of course, has no history or tradition because it hasn't been legal.
Their pro–gay marriage adversaries effectively dismiss this circular reasoning by pointing to the seminal case on the subject, a 1967 U.S. Supreme Court case known appropriately as Loving v. Virginia. The Loving case struck down a ban on interracial marriage. As the brief of the King County plaintiffs puts it: "These plaintiffs want marriage, not 'same sex marriage,' just as the Lovings wanted marriage, not 'interracial marriage.'"
There is something about the "history and tradition" point that gets to the core of the case. Several times, the state's brief cites the dictionary to show that, by definition, marriage is between a man and a woman. "The constitution does not require words to change their meaning," adds the brief. "Dictionaries reflect the world, they do not create it," responds the King County plaintiffs' brief.
The dictionary might indeed seem a lame prop for a legal argument. Yet its reflection of the world, our shared understanding of what words like "marriage" mean, passed down through centuries, is undeniably powerful—more powerful, perhaps, than any social science debate about gays and child rearing. The question here is how much power that tradition should hold over the law. According to Hicks, not much. "If a historical commitment is the protected thing, then such a bald justification would always prevent any change in any state law," he declared. It's up to the state Supreme Court now to consider.