Just seven years ago, the Washington Supreme Court gave great deference to the state Legislature’s right to discriminate against same-sex marriage.
In the 2006 Anderson v. King County ruling upholding the state Defense of Marriage Act, Justice Barbara Madsen wrote that the Defense of Marriage Act (DOMA) didn’t violate couples’ rights to equal protection because those couples couldn’t show they required “favored minority class” status. Because of this flawed framing, it gave overly broad leeway for the Legislature to enable discrimination. Moreover, the ruling validated the Legislature’s authority to obsess over opposite-sex procreation. According to the Anderson ruling:
That is, the legislature was entitled to believe that providing that only opposite-sex couples may marry will encourage procreation and child-rearing in a “traditional” nuclear family where children tend to thrive.
Today, the supposedly more conservative U.S. Supreme Court flipped that argument on its head in U.S. v. Windsor. In its majority opinion, the court said:
DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group… DOMA cannot survive under these principles.
Justice Anthony Kennedy rightly peeled back the discriminatory intent of the federal DOMA (and its offspring, like Washington’s DOMA).
DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages… was more than an incidental effect of the federal statute. It was its essence.
It was particularly refreshing to see Kennedy confront the contention that children are somehow inherently harmed by parentage by loving same-same couples, a bugaboo of same-sex proponents and an argument advanced by our state Supreme Court.
“(DOMA) humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
It is amazing how quickly the cultural and political tide turned on gay marriage. In 2006, a national Gallup poll found 42 percent support for same-sex marriage; today, it’s 53 percent, and growing. When the ruling came down early today, I reminded my young kids that today was a historic day. They shrugged. Of their favorite songs is Macklemore’s “Same Love.” From their perspective, gay marriage is a no-brainer. Why shouldn’t they be able to marry who they love?
The Washington state Supreme Court whiffed on its chance to get this issue right. Thanks to dedicated advocates and lawmakers, open-minded voters (and a few of my colleagues), the state got this right at the ballot. Love wins.