A Stitch in Haste

It's quite simple really: the Washington Supreme Court's upholding of that state's DOMA is little more than New York's Hernandez v. Robles all over again.

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.

Translation: It is perfectly permissible to relegate an insular minority to second-class citizenship for no other reason than because the majority is too incompetent to control itself sexually and needs to be "encouraged" (i.e., manipulated) into certain behaviors in a way that gays, apparently, need not be.

From which it follows:

--Majoritarianism is absolute; the legislature is to be deferred to at all costs.

--Romer is dead; naked bigotry is once again a legitimate government interest, so long as it is sufficiently cloaked.

--Discriminatory laws are no longer subject to "overinclusiveness" or "underinclusiveness" review (e.g., apparently gay parents simply do not exist).

--It is permissible for a legislature to "believe" something, and to legislate accordingly, no matter how little evidence supports that "belief" or how much evidence contradicts it. (This was also the single most exasperating part of the Robles decision.)

--Judges have no prerogative, none whatsoever, to challenge the "beliefs" of the legislature, no matter unsupported, and unsupportable, those beliefs might be.

--Anyone who disagrees is a "judicial activist."

The opinions are astoundingly harsh and bitter toward one another — they will make an interesting if disappointing read.

More, possibly, later.

The case is Andersen v. King Co., Nos. 75934-1, 75956-1 (Wash. July 26, 2006). Links to PDFs here.

I hope you won't think less of me when I tell you that I won't be reading the entire 128-page, 2-1 decision by a California intermediate appellate court overturning a trial court's finding that California's same-same marriage ban violates that state's constitution. Everyone knew, a priori, that the decision would go to the California Supreme Court one way or the other. This is just a pit stop.

But I did glance at the ruling, and it's the same tired script. Marriage may be a fundamental right, but same-sex marriage isn't. Loving v. Virginia was "only about race." Sexual orientation is not a suspect class. Limiting marriage is not gender discrimination. Romer v. Evans has no relevance. Rational basis review means blind deference.

Oh, and who are we in California to disagree with New York? It looks increasingly like the horribly-reasoned New York disappointment, Hernandez v. Robles, is on a pace to do more damage to gay rights, nationwide, than even Bowers v. Hardwick did.

Two other observations:

--The majority went to great lengths to chastise, almost to ridicule, the dissent. I only glanced at that as well, but the repeated tsk-tsking of the majority seemed unwarranted and a bit unprofessional.

--Part of the majority's rationale/rationalization in upholding the ban was to cite, repeatedly, the expansive nature of California's domestic partnership program. You can almost hear them saying, "Look, we're practically Vermont as it is — why rock the boat?" Besides the fact that a state's conferral of domestic partnership is less portable out-of-state than a marriage license, it's of course easy to downplay a "partial" denial of equal protection, fundamental rights and basic human dignities when you're not the one being denied them — see generally, "War on Terror."

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The various cases were consolidated under the title "In Re Marriage Cases," No. 4365 (Cal. Ct. App., 5 October 2006) (PDF - 128 pages).