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Reality Rules

By Advokat August 5, 2010

A federal district court judge in California struck down California’s Constitutional provision prohibiting same-sex marriage as violating both the due process and equal protection clauses of the United States Constitution. The decision in Perry v. Schwarzenegger certainly will be appealed to the Ninth Circuit and likely to the United States Supreme Court. If the decision is affirmed, then all state laws prohibiting same sex marriage, including Washington’s, will be unconstitutional.

The previous cases addressing same sex marriage in Washington, Massachusetts, California, Hawaii, New Jersey, New York, etc. were all decided under the respective state constitutions rather than the federal constitution like Perry. Arguing state constitutional provisions was a strategic decision generally based on the belief that (1) state supreme courts might be willing to find broader rights within their respective state constitutions (2) court cases should proceed strategically in the right courts to build on each other over time, and (3) the recent make-up of the United States Supreme Court would not be receptive to recognizing a constitutional right to same sex marriage at this time.

This strategy is similar to that used to overturn laws banning interracial marriage. The first successful case was brought in California in the 1940s leading ultimately to the United States Supreme Court declaring in Loving v. Virginia that laws banning inter-racial marriage were unconstitutional in 1967.

The Perry case was criticized at the time it was brought because it potentially would upset the strategy for building case law over time in more receptive courts. The strategy found some success, but not in Washington where our Supreme Court ruled 5-4 that Washington’s ban on same-sex marriage did not violate the Washington constitution. But even where successful, the strategy was susceptible to efforts to amend state constitutions to put the ban on same-sex marriage into the constitution itself. That happened in Hawaii. And that happened in California which led to yesterdays decision.

Although theses state court cases, including the Washington case, were argued under state constitutional provisions, those state provisions mirrored the federal constitutional provisions at issue in Perry. In Washington, our Supreme Court found the state constitutional equivalents to the federal due process and equal protection clauses did not provide broader protection to gay and lesbian Washington citizens than the federal constitution. Thus, the Perry decision directly contradicts the Washington Supreme Court.

The Perry court contradicted the Washington Supreme Court on two critical points. First, in Perry, the Court found that the fundamental right to marry protected under the due process clause included the right of same sex-marriage. The court defined the right to marry by the reasons people marry and through the benefits marriage provide which not surprisingly do not depend on the sexual orientation of the persons seeking to get married. In Washington, the court rejected that view of the right to marry based on the lack of historical precedent for same-sex marriage. Second, the Perry court debunked the arguments against same-sex marriage—that preserving heterosexual marriage promotes the State’s interest in procreation and that children raised by heterosexual parents do better than children raised by same-sex couples—finding the arguments are not factually sustainable and are instead based on discriminatory stigma and stereotype.

The Perry court came to these conclusions after holding a trial on the merits of those claims. In so doing, the Perry Court grounded these determinations as findings of fact based on a full evaluation of the evidence and the credibility of the witnesses.  Indeed, the judge in Perry specifically rejected the credibility of both experts who testified against same sex marriage.  These findings of facts are supposed generally to be accepted as true for purposes of appellate review.

In contrast, in Washington (and the other state cases) evidence was presented by both sides through affidavits filed in support of summary judgment. When facts are argued on summary judgment, the appellate courts can take its own independent look at the evidence making it easier for the appellate courts to overturn a trial court grant of summary judgment. For example, the five member majority of the Washington Supreme Court found, contrary to the Perry decision, that the claimed state interests against same-sex marriage were rational. The hope is that the Perry decision will more likely be upheld on appeal based on the Perry Court's findings of facts.

Despite the better legal posture of the Perry case, the result on appeal is very uncertain. The problem is that—as the Perry decision states so well—the arguments against same sex marriage reflect underlying moral disapproval of same sex couples and animus towards gays and lesbians. In other words, upholding the ban on same sex marriage is based on a personal moral judgment that cannot rationally be used to support state sponsored discrimination. It takes, however, an enlightened judge to recognize that truth.

Five members of the Washington Supreme Court did not do so. The question at the end of the day is whether five members of the United States Supreme court will recognize that truth.

It is worth noting that three of the five members of the Washington Supreme Court who upheld the ban on same sex marriage are up for re-election this year. One, Justice Barbara Madsen, has no opponent. One, Justice Sanders, has an opponent Charles Wiggins, who has stated the Washington Supreme Court made the right decision. But one Justice Jim Johnson has an opponent, Stan Rumbaugh, who gets it and believes the Washington Supreme Court made the wrong decision.?
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