The Rationale for Love

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."