August 04, 2004

Lessons From Missouri And Washington

What We Can Learn For Oregon's Same-Sex Marriage Battle

It is not our custom to report on events in other states, but recent developments (exceedingly recent, in fact, having occured within the past two days) on the same-sex marriage front in the states of Missouri and Washington are important both for rhetorical and strategic reasons, and so we feel it's worth taking some time to address them here.

Let's begin in the state of Missouri, where voters yesterday approved a Constitutional ban on same-sex marriage not dissimilar to the one to be considered by Oregon voters this November. This development prompted some words of warning over on Worldwide Pablo regarding what strategies should and should not be employed here in Oregon:

Should we now ditch the niceties of the "don't put graffiti in the constitution" argument and simply tell the stories of the gays and lesbians who stepped up for marriage, and say plainly what it is we are proposing to remove by the amendment now before Oregon voters?

In the comments over at WWP, it's evident that there is some bad blood as regards previous campaigns related to the rights of gays and lesbians, during which (WWP contends), parties such as Basic Rights Oregon began with such a "personal story" approach, but drifted into strategies of a less human interest nature as the elections in question drew near.

It's clear from yesterday's kick-off event for the campaign against Measure 36 here in Oregon that this latest effort also is starting off making use of the personal angle, and for the moment we'll give the anti-amendment coalition the benefit of the doubt that they will continue to do so -- which is not to say that we won't do our part to remind them to continue to do so.

We know as close to nothing as makes no difference about the strategies in Missouri to be able to comment too deeply about the similarities and differences when it comes to the strategies here in Oregon. Nor, for that matter, do we know the composition of the coalition against that state's amendment -- for example, if it had a strong representation from the religious community the way the Oregon coalition does. Perhaps someone more familiar with Missouri politics might have something to say on that count.

What we do know is that there is one crucial distinction here in Oregon that must never at any moment be forgotten or thrown to the curb in the course of the next three months. Here in Oregon, thanks to Multnomah County, we have in excess of 3,000 same-sex marriage licenses. Missouri could not say the same.

The importance of this was demonstrated by the appearance at yesterday's kick-off event of Kelly Burke, who told of being denied health coverage under her partner's plan until she was able to produce a marriage license.

But that newfound acceptance came with one caveat: If the voters of Oregon pass Measure 36, the plan in question likely will have to revoke Burke's coverage.

This underscores the more concrete nature of the same-sex marriage fight in Oregon as it pertains to Measure 36. That proposed Constitutional change in essence is a marriage nullification amendment.

While it is true that as the legal situation stands today, the State of Oregon does not actually recognize these 3,000-plus same-sex marriage licenses as valid (although the State was required to engage in the technically-adminsitrative function of recording them), Burke's story illustrates that the mere existence of these licenses is already producing demonstrable social and legal benefits to the couples in question. In practice and in effect, if not in law, these marriages are real.

Missouri's battle was hypothetical, prompted by the court decision in Massachusetts declaring same-sex marriage to be legal under that state's Constitution. In addition to having to counter any possible appeals to voter fear and ignorance on the part of supporters of Missouri's amendment, opponents of the measure had to wage their fight, in a sense, on the plane of the imagination. Here in Oregon, however, the battle is very real. Here, passage of Measure 36 would be a specific and conscious decision on the part of voters to revoke the rights and responsibilities of marriage already beginning to be enjoyed by same-sex couples.

As we said, Measure 36 is about marriage nullification.

Let's move on now to the state of Washington, where today a judge ruled that the state's statutory ban on same-sex marriage was unconstitutional:

Gay couples can marry in Washington state, a judge ruled Wednesday, saying that banning such marriages violates the state constitution.

"The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process," King County Superior Court Judge William L. Downing said in his ruling.

In this case, we want to focus on some important legal and rhetorical elements of Downing's ruling (pdf). While there is no direct comparison or link between the courts in Washington and the courts here in Oregon, there are important arguments contained in the decision that should be considered.

First, we are compelled to observe that Downing's ruling goes leaps and bounds beyond the tepid and cowardly opinion by Judge Frank L. Bearden here in Multnomah County earlier this year. At the time of that ruling, we were fairly unsubtle in professing our view that Bearden simply crafted a ruling designed to permit him to dodge as many of the critical issues as possible.

Compare that to some of Downing's comments, which appear in his very well-written and well-presented introduction:

There are, of course, political ramifications to this wedlock deadlock and neither folly nor sense of duty could blind one to that circumstance. The social issue before the Court is one about which people of the highest intellect, the deepest morality and the broadest public vision maintain divergent opinions, strongly held in good faith and all worthy of great respect. Resolving their disagreement is, to be frank, a matter too big to be addressed to a lone individual and this author would naturally like nothing better than to stop at this point and, with a warm and sincere pat on the back, to send all parties off to the State Supreme Court or the State legislature or both. Regrettably or not, such an abdication of responsibility is not an option. As this case and this debate pass by this way station, some impressions and conclusions must be recorded.

It's a stretch to argue that our perception reflects reality, but we could not help but read this section and muse to ourselves that Downing's comments about an abdication of responsibility were somehow directed south of the Washington/Oregon border into the chambers of Judge Bearden. It is most assurdely not so, but we find ourselves hoping that Bearden reads Downing's comments and perhaps feels a bit chastened anyway.

We won't delve into Downing's detailed examination of the issues presented or the relevant standard of review. His ruling is so sublime, so wonderful, and so nearly all-encompassing, that only by reading it in its entirety can it truly be appreciated for all that it is. So for our purposes, then, we will have to offer only some highlights from his conclusions.

Recognizing that Washington's statutory ban on same-sex marriage "must be scrutinized as statutes negatively impacting the plaintiffs’ fundamental right to marry" and that their resitrctions "must be narrowly tailored to serve a compelling state interest," Downing examines a series of arguments for denying same-sex marriage -- even while indicating that their "superficial appeal" is irrelevant for the purposes of his constitutional analysis. In other words, while countering the arguments is not required for his analysis, he counters them anyway and does us all a great service by doing so.

On the argument that morality requires a ban on same-sex marriage, Downing says that "the moral views of the majority can never provide the sole basis for legislation," and upon pointing out that some religious institutions in fact are performing same-sex marriage ceremonies adds this: "It is not for our secular government to choose between religions and take moral or religious sides in such a debate."

On the argument that traditional compels a ban on same-sex marriage, Downing observes that "the shape of marriage has drastically changed over the years." He concludes: "Serving tradition, for the sake of tradition alone, is not a compelling state interest."

On the argument that the institution of marriage is threatened by same-sex marriage, Downing argues that "both the causes of the present situation and the primary future threat" when it comes to marriage "come from inside the institution, not outside of it." To wit, he writes: "Not to be too harsh, but they are a shortage of commitment and an excess of selfishness." Before the court, he notes, are couples "who credibly represent that they are ready and willing to make the right kind of commitment to partner and family for the right kinds of reasons."

On the related argument that the interests of marriage "are encouraging procreation and the raising of children in a healthy, nurturing environment," Downing details the familiar litany of examples (married couples who do not procreate, unmarried couples who do procreate, married or unmarried couples who procreate through adoption or technological means, etc.), and then puts the smackdown to the fallacy:

One, then, must try to envision two categories of future children. The first category consists of those whose heterosexual parents will either neglect them or never conceive them because same-sex marriage has been legalized. The second category is those children who will be raised in a home with same-sex adult partners and who would enjoy enhanced family stability and social adjustment if these adults were granted the benefits of civil marriage. The only reasonable conclusion is that the very real second category greatly outnumbers the first theoretical one. Therefore, the goal of nurturing and providing for the emotional wellbeing of children would be rationally served by allowing same-sex couples to marry; that same goal is impaired by prohibiting such marriages.

Not only does Downing so deftly describe the true nature of the premise behind the procreation argument in the section just quoted, he immediately follows it with this remark: "The above conclusion is inescapable when one looks objectively and dispassionately at the properly framed question."

On the related argument "that the statutory ban on same-sex marriage serves the interest of protecting children from the harms that may be caused by being raised in a non-traditional family," Downing promptly and concisely points out the lack of any "scientifically valid studies tending to establish a negative impact on the adjustment of children raised by an intact same-sex couple as compared with those raised by an intact opposite-sex couple."

All of which leads to Downing's conclusion "that the exclusion of same-sex partners from civil marriage and the privileges attendant thereto is not rationally related to any legitimate or compelling state interest and is certainly not narrowly tailored toward such an interest."

As such, Downing makes some declarations pertaining to Washington's statutory ban on same-sex marriage:

• The privilege of civil marriage and the various privileges legally conferred by that status are not being made equally available to all citizens.
• The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process.

(That violation of substantive due process has to do with the ban amounting to an unwarranted restriction upon the rights to liberty and privacy.)

In addition to the two above statements, Downing avoided too deeply addressing an argument based upon Washington's Equal Right Amendment, under which the plaintiffs in this case contended that the ban was gender discrimination. See the ruling itself for more of the details on that particular element. But it is worth noting that that Downing reached his conclusions as to the impermissibiltiy of the state's same-sex marriage ban even while avoiding both that ERA argument as well as the matter of whether homosexuals constitute a "suspect class" for the purposes of legal protections against discrimination. Despite not grappling with those issues (which have also been raised here in Oregon), Downing nonetheless found the Washington ban to be unconstitutional.

But returning to what Downing does address, we were pleased to discover that even with all of the above, he didn't stop there. In a discussion of possible remedies, and while admitting that any such determinations will be made at the level of the State Supreme Court, Downing recognizes that one potential remedy the courts might indicate is that of the alternative "civil unions" concept -- which we've previously labelled a canard and a cop-out. Here's what Downing himself goes on to say:

The Court is inclined to offer this perhaps gratuitous observation. If there is indeed any outside threat to the institution of marriage, it could well lie in legislative tinkering with the creation of alternative species of quasi-marriage. With the creation of "civil unions", "domestic partnerships" or other variations on the theme including, worst of all, something like a "five year plan with opt-out", there could be a real danger. When cohabiting heterosexual couples can sign up for a renewable or revocable fixed term contract to define the terms of their staterecognized relationship, then marriage, as an institution, could be weakened. Better, perhaps, (in terms of simplicity, fairness and social policy) to allow all who are up to taking on the heavy responsibilities of marriage, with its exclusivity and its "till death do us part" commitment, to do so – not lightly, but advisedly.

And even with this, Downing is still not done. But we leave it to our readers to examine for themselves his final comments at the end of his ruling. Even if our own breakdown of his ruling seems enough, those concluding thoughts are worth the read in and of themselves. Ah, if only our own Judge Bearden could have been so thorough, so well-spoken, and so well-inclined to do his job.

Finally, we reiterate that we are not arguing that a decision in the state of Washington sets any legal precedent for the courts here in Oregon. We simply believe that Downing's ruling perhaps is the most stellar omnibus take-down of the arguments presented by opponents of same-sex marriage that we've yet seen, and should be studied by all interested parties in our own state for as many legal and rhetorical cues as can possible be found there.

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