The Duck of Minerva

The Duck Quacks at Twilight

I’m definitely not a lawyer

July 29, 2006

I’ve been skimming the Washington State Supreme Court decision (PDF) on gay marriage (via Andrew Sullivan), and I’m pretty appalled. My jaw started to drop when I read this line:

Finally, DOMA does not violate the state constitution’s equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.

We’ve heard that before, obviously. It was the rationale used to uphold bans on inter-racial marriage. So what does the opinion actually say about Loving? That because the Court looked to changing social norms–a minority of states banned inter-racial marriage at the time–that the Washington State Supreme Court would look to social norms as well. Since an overwhelming majority of states ban gay marriage and since same-sex marriage has long been prohibited, it follows that no fundamental right is at stake.

The WSSC also argues that the marriage right is tied to procreation. Oddly, it blockquotes Zablocki in a way that suggests a distinction between the right of procreation and the right of marriage:

[i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. . . . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

I don’t know the full context, but this strikes me as an argument that family serves multiple functions, only one of which is actual procreation between spouses.

(I should also note that all of the sterling rhetoric about the centrality of marriage to human survival and progress–including an 1888 decision which notes “that marriage is ‘the foundation of the family and of society, without which there would be neither civilization nor progress'”–deserves a great more empirical scrutiny. Just because the Courts have asserted this relationship for some time does not make it true.)

I also don’t understand the WSSC’s answer to Turner v. Safley

In Turner, the Court invalidated a regulation that prohibited inmate marriage absent compelling reasons for marriage, holding that the fundamental right to marry was impermissibly burdened. Rejecting the contention that the interest at issue was inmate marriage, the Court said that inmate marriages were, like others, expressions of emotional support and public commitment, and may for some inmates be an exercise of religious faith as well as an expression of personal dedication. Turner, 482 U.S. at 95-96. In addition, the Court said, most inmates would eventually be released and thus most inmate marriages were formed in the expectation they would be fully consummated. Turner, 482 U.S. at 96. Finally, the Court noted marriage often is a precondition to government benefits, property rights, and other benefits such as legitimation of children born out of wedlock.

Like Skinner, Loving, and Zablocki, Turner involved burdens on individuals seeking opposite-sex marriage. While the Court did not expressly link marriage to procreation and other rights related to procreation and children as it had in other cases, we also do not find in Turner any signal that the case marked a turning point in the definition of marriage as a fundamental right. We do not agree that the Court in Turner intended its analysis to mean that marriage as a fundamental right is no longer anchored in the tradition of marriage as between a man and a woman.

But of course it didn’t. If it did, we would have same-sex marriage (or a Constitutional amendment banning it). Instead, the opinion suggests that marriage serves a broad variety of functions and that to prohibit a prisoner from receiving them constituted a violation of their rights. Prohibiting same-sex marriage denies these functions to gay men and women. This doesn’t seem like rocket science, and the WSSC looks to me like it is tying itself in knots trying to deny the obvious.

I know that there are issues of legislative deference at stake, but I find it troubling that the WSSC uses, in effect, a history of discrimination and faulty reasoning by legislatures as a basis for carving out what appears to be a “same-sex exception” for equal protection as applied to marriage rights.

So please, legal eagles, help me understand this one.

Okay, I suppose this makes some sense. But I’m still not convinced.

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Daniel H. Nexon is a Professor at Georgetown University, with a joint appointment in the Department of Government and the School of Foreign Service. His academic work focuses on international-relations theory, power politics, empires and hegemony, and international order. He has also written on the relationship between popular culture and world politics.