Well, fuck! The Washington State Supreme Court handed down its long-awaited decision today on the constitionality of the state’s Defense of Marriage Act. Somehow, they found that it didn’t violate the state constitution’s Equal Protection clause.
No same-sex marriages in Washington state anytime soon.
I attended the rally at the First Baptist church earlier this evening. (Find me in the photo!) Some anger, some disappointment. Mostly upbeat. The young Latina couple were very affecting. The Serkin-Pooles invited everyone to join their club, as they announced their formal engagement to each other. One speaker pointed out that even if the court had handed down a favorable decision, the process would not have been over.
Tomorrow we fight another day. I’ve been supporting same-sex marriage since 1993, when I heard of the Hawaii Equal Rights Marriage Project. I didn’t expect the war to end today, though it would have been nice to win this battle.
The LMA have more on what it all means.
Dahlia Lithwick at Slate ably skewers the court’s decision in Rational Lampoon:
If you vote to uphold the ban, on the other hand, you’ll get to join your colleagues on the New York and Nebraska courts, who just did the same thing. You’ll also find yourself in the warm embrace of your buddies on the Georgia and Tennessee courts (who ultimately ruled against gay marriage in recent weeks on narrower, more technical, terms). Nobody will excoriate you in the op-ed pages. Instead of causing widespread fury, you will unleash, at most, widespread resignation.
Still, you feel bad. You hold no personal animus toward gay people. You even think there is something slightly mean-spirited behind your state’s Defense of Marriage Act. You talk it over with your wife/husband/clerks. It’s a pickle. Months pass.
Until you hit upon the solution: Shift the blame. Make the legislature the bad guys. Find a way to frame the ban on gay marriage that makes it impossible to strike down. Rule that unless the ban is utterly insane, it’s constitutional. Suggest that as long as the legislature passed it, it must be rational. Use the word "deferential" six times.
The key to appearing reasonable will be to vilify the dissenters. You’ll want to use your majority opinion to emphasize that judges who vote their "personal views" are behaving like "legislators." Quote liberal lion Supreme Court Justice John Paul Stevens for that proposition. Then condemn—without quite using the words "judicial activist"—the dissenters for having been "uncharacteristically … led to depart significantly from the court’s limited role when deciding constitutional challenges."
Be sure to tell your "readers unfamiliar with appellate court review" that your state’s decision to ban gay marriage is solely the fault of the legislature. Because you yourself, of course, still love everyone.