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Washington State rules against marriage equality

[UPDATE: I am adding more content and commentary as I have time.]

Here we go, folks — the official venting thread. The ruling and dissent can be read here.

A key passage in the ruling cites judicial restraint — clearly there are no “activist judges” at work here — contrary to fundie belief. It’s another NY-style setback/punt.

The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer “yes,” and we therefore reverse the trial courts.

In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.

…Perhaps because of the nature of the issue in this case and the strong feelings it brings to the front, some members of the court have uncharacteristically been led to depart significantly from the court’s limited role when deciding constitutional challenges. For example, Justice Fairhurst’s dissent declines to apply settled principles for reviewing the legislature’s acts and instead decides for itself what the public policy of this state should be. Justice Bridge’s dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it.

This court, as in the NY ruling, tosses it back to the legislature and the voters. This court also cites DOMA’s constitutionality — which upholds procreation as a factor limiting marriage. Horrible.

Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes

I noted in the comments that the NY and WA courts carefully crafted their rulings so that Loving v. Virginia cannot be tossed back in their faces as long they cite procreation as the basis for the ruling. So, race trumps orientation when it comes to civil equality because interracial opposite sex couples can shoot out babies. That’s BS.

I don’t have time to write more, but I’m sure you all will have plenty to say. I’ll update later.

The case is Andersen v. King Co., Nos. 75934-1, 75956-1


If you care, the Freepers are at it already.


Also, here’s another viewpoint, over at AmericaBlog.

And finally, this “legalize marriage” court strategy looks increasingly like a runaway train, out of our control and stealing all the oxygen from the good work that’s been done over the past decade on job discrimination and so much more. You pick your battles strategically. (Well, you do if you want to win, and have any political sense.) No one is saying we roll over and play dead. But I am saying that we only have so much time and so much money – we need to use those limited assets wisely. And blowing the entire wad on marriage strikes me as foolish and counterproductive. Someone in the community with some influence needs to stand up and say “enough already,” and get our agenda back.

Any and all avenues have to be tried to move the discussion forward, and there will be wins and losses. John had a thread up yesterday criticizing the three gay rights orgs for placing a huge ad buy in papers around the country with a “Marriage Matters” campaign. He and many of his readers feel it was a waste of $250K, and that with the fall election three months away, gays groups need to sit back again, or lower the bar and go for “something attainable” like the Employment Non-Discrimination Act (ENDA) which extend job anti-discrimination legislation to include gays and lesbians. Didn’t we try this already? The wingers still steamrolled the issue while the Dems continued their silence. It’s why all those state amendments passed without more than a whimper from national gay orgs.

What was sad to see in those comments at AB was a lot of near-gay-bashing, recalling the familiar cry after the 2004 election (if there are losses in the fall it’s all about gays “pushing” for gay marriage). I responded in the comments:

With states under the gun with marriage amendments on the ballot, visibility is meaningful.

As others have said, the Republicans and the bible beaters are not going to leave this subject alone. They bring out the old saws of abortion and marriage equality out when they have nothing else to offer.

It’s entirely possible that the failures of the Bush administration will result in a lot of Republican losses in the fall, it’s equally likely that those marriage amendments will pass — Democrats and moderate, particularly religious, socially conservative blacks, will cast a ballot for these amendments.

I’m thankful that my state of NC (as another Tar Heel stated above) has continually bottled up its marriage amendment bills in committee. For my neighbor states of SC and Virginia, they need the visibility of a campaign like this to educate voters who may be on the fence, or, more likely, don’t even see it on their radar.

And that’s still true, no matter what the rulings were in NY or WA.


In the same vein, while I’m eating lunch, an email pops in my box from the folks at, which also argues for a different strategy.

Meanwhile, the LGBT movement has recently focused on marriage equality as a stand-alone issue. While this strategy may secure rights and benefits for some LGBT families, it has left us isolated and vulnerable to a virulent backlash. We must respond to the full scope of the conservative marriage agenda by building alliances across issues and constituencies. Our strategies must be visionary, creative, and practical to counter the right’s powerful and effective use of marriage as a “wedge” issue that pits one group against another. The struggle for marriage rights should be part of a larger effort to strengthen the stability and security of diverse households and families.

…Marriage is not the only worthy form of family or relationship, and it should not be legally and economically privileged above all others. A majority of people – whatever their sexual and gender identities – do not live in traditional nuclear families. They stand to gain from alternative forms of household recognition beyond one-size-fits-all marriage.

…The current debate over marriage, same-sex and otherwise, ignores the needs and desires of so many in a nation where household diversity is the demographic norm. We seek to reframe this debate. Our ca
ll speaks to the widespread hunger for authentic and just community in ways that are both pragmatic and visionary. It follows in the best tradition of the progressive LGBT movement, which invented alternative legal statuses such as domestic partnership and reciprocal beneficiary. We seek to build on these historic accomplishments by continuing to diversify and democratize partnership and household recognition. We advocate the expansion of existing legal statuses, social services and benefits to support the needs of all our households.

This is not unlike the battle going on in Colorado, where Daddy Dobson supports domestic partnership legislation that enables “reciprocal beneficiary agreements,” which allows any two parties excluded from marrying under Colorado law to have specific rights, “including but not limited to health care insurance benefits.” This would accommodate senior citizens living together, adult caregivers of parents, etc. Both this measure and a marriage amendment ban will be on the Colorado ballot this fall.

Even the support of this measure got Dobson in a lot of hot water with his fundie colleagues, so even baby steps that aren’t called marriage pose an uphill battle in many states where marriage isn’t an option.

That’s why visibility is so important, and certainly more effective than burying advocacy, discussion and debate when an election cycle comes up. The Right won’t leave this puppy alone.

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Pam Spaulding

Pam Spaulding