Singer v Hara (An abridged version of the decision by the Washington State Court of Appeals, issued May 20, 1974. All text below is from the court's decision, except as indicated in brackets. Omissions from the complete text are also indicated in brackets.) The Appeal Appellants argue three basic assignments of error, namely, (1) the trial court erred in concluding that the Washington marriage statutes, RCW 26.04.010 et seq., prohibit same-sex marriages; (2) the trial court's order violates the Equal Rights Amendment (ERA) to the Washington State Constitution, Const. art. 31, SS 1; and (3) the trial court's order violates the eighth, ninth and fourteenth amendments to the United States Constitution. (footnote dismisses supportive testimony from sociology, theology, science and medicine.) Regarding Washington State law Directing our attention to appellants' first assignment of error, it is apparent from a plain reading of our marriage statutes that the legislature has not authorized same-sex marriages. Appellants argue that RCW 26.04.010, which authorizes marriages by "persons of the age of eighteen years, who are otherwise capable" includes no requirement that marriage partners be limited to one male and one female and that the phrase "who are otherwise capable" refers to the prohibitions of RCW 26.04.020-.040 against certain marriages involving persons who are habitual criminals, diseased, insane, etc., but there is no prohibition against same-sex marriages. Appellants argue that the legislature has not defined the competency of marriage but only the competency of individuals seeking to marry; inasmuch as the appellants are both legally "capable" of marriage, they argue state law permits them to marry each other. As the state points out, however, the statutory language of RCW 26.04.010 relied upon by the appellants merely reflects a 1970 amendment which substituted the word "persons" for the prior references to "males" and "females" to implement the legislature's elimination of differing age requirements for marriage by the respective sexes. Further, RCW 26.04.210, relating to the affidavits required for the issuance of a marriage license, makes reference to "the male" and "the female" which clearly dispels any suggestion that the legislature intended to authorize same-sex marriages. (footnotes quote language) The trial court correctly concluded that the applicable marriage statutes do not permit same-sex marriage. Regarding the Equal Rights Amendment Appellants next argue that if, as we have held, our state marriage laws must be construed to prohibit same-sex marriages, such laws are unconstitutional when so applied. In this context, we consider appellants' second assignment of error which is directed to the proposition that the state prohibition of same-sex marriages violates the ERA which recently became part of our state constitution. The question thus presented is a matter of first impression in this state and, to our knowledge, no court in the nation has ruled upon the legality of same-sex marriage in light of an equal rights amendment. The ERA provides, in relevant part: "Equality of rights and responsibility under the law shall not be denied or abridged on account of sex." In seeking the protection of the ERA, appellants argue that the language of the amendment itself leaves no question of interpretation and that the essential thrust of the ERA is to make sex an impermissible legal classification. Therefore, they argue, to construe state law to permit a man to marry a woman but at the same time to deny him the right to marry another man is to construct an unconstitutional classification "on account of sex." (footnotes about voters pamphlet comments and editorials at the time ERA passed and became effective December 7,1972, as constitutional amendment 61, adding article 31.) In response to appellants' contention, the state points out that all same-sex marriages are deemed illegal by the state, and therefore argues that there is no violation of the ERA so long as marriage licenses are denied equally to both male and female pairs. In other words, the state suggests that appellants are not entitled to relief under the ERA because they have failed to make a showing that they are somehow being treated differently by the state than they would be if they were females. Appellants suggest, however, that the holdings in Loving v. Virginia, 388 U.S. 1, 9,18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Perez v. Lippold, 32 Cal. 2d 711, 198 P.2d 17 (1948); and J.S.K. Enterprises, Inc. v. Lacey, 6 Wn. App. 43, 492 P.2d 600 (1971), are contrary to the position taken by the state. We disagree. In Loving, the state of Virginia argued that its antimiscegenation statutes did not violate constitutional prohibitions against racial classifications because the statutes affected both racial groups equally. The Supreme Court, noting that "the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race," held that the Virginia laws were founded on an impermissible racial classification and therefore could not be used to deny interracial couples the "fundamental" right to marry. The California court made a similar ruling as to that state's antimiscegenation law in Perez. Although appellants suggest an analogy between the racial classification involved in Loving and Perez and the alleged sexual classification involved in the case at bar, we do not find such an analogy. The operative distinction lies in the relationship which is described by the term "marriage" itself, and that relationship is the legal union of one man and one woman. Washington statutes, specifically those relating to marriage (RCW 26.04) and marital (community) property (RCW 26.16), are clearly founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman who are otherwise qualified to enter that relationship. (footnote lists case law. Editorial note: In the footnote the court declined to rely on dictionary definitions, saying "We need not resort to the quotation of dictionary definitions to establish that "marriage" in the usual and ordinary sense refers to the legal union of one man and one woman. Until now have not been required to define specifically what constitutes a marriage, it is apparent from a review of cases dealing with legal questions arising out of the marital relationship that the definition of marriage as the legal union of one man and one woman who are otherwise qualified to enter into the relationship not only is clearly implied from such cases, but also was deemed by the court in each case to be so obvious as not to require recitation." The Vermont court in 1999 included dictionary references.) Given the definition of marriage which we have enunciated, the distinction between the case presented by appellants and those presented in Loving and Perez is apparent. In Loving and Perez, the parties were barred from entering into the marriage relationship because of an impermissible racial classification. There is no analogous sexual classification involved in the instant case because appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. (footnote cites case law) Appellants argue that Loving and Perez are analogous to the case at bar notwithstanding what might be the "definition" of marriage. They argue that at the time Loving and Perez were decided, marriage *by definition* barred interracial marriages and that the Loving and Perez courts changed that definition through their interpretation of the Fourteenth Amendment. Appellants suggest that the ERA operates in a manner analogous to the Fourteenth Amendment to require us to change the definition of marriage to include same-sex marriages. We disagree. The Loving and Perez court did not change the basic definition of marriage as the legal union of one man and one woman; rather they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. In other words, contrary to appellants' contention, the Fourteenth Amendment did not require any change in the definition of marriage and, as we hold today, neither does the ERA. (court poses hypothetical examples.) Appellants apparently argue, however, that notwithstanding the fact that the equal protection analysis applied in Loving, Perez and J.S.K. Enterprises, Inc., may render those cases distinguishable from the case at bar, the absolute language of the ERA requires the conclusion that the prohibition against same-sex marriages is unconstitutional. In this context, appellants suggest that definition of marriage, as the legal union of one man and one woman, in and of itself, when applied to appellants, constitutes a violation of the ERA. Therefore, appellants contend, persons of the same sex must be presumed to have the constitutional right to marry one another in the absence of a countervailing interest or clear exception to the ERA. (discussion of ERA and case law follows) We are of the opinion that a commonsense reading of the language of the ERA indicates that an individual 's afforded no protection under the ERA unless he or she first demonstrates that a right or responsibility has been denied solely because of that individual's sex. Appellants are unable to make such a showing because the right or responsibility they seek does not exist. The ERA does not create any new rights or responsibilities, such as the conceivable right of persons of the same sex to marry one another; rather, it merely insures that existing rights and responsibilities, or such rights and responsibilities as may be created in the future, which previously might have been wholly or partially denied to one sex or to the other, will be equally available to members of either sex. The form of discrimination or difference in legal treatment which comes within the prohibition of the ERA necessarily is of an invidious character because it is discrimination based upon the fortuitous circumstance of one's membership in a particular sex per se. This is not to say, however, that the ERA prohibits all legal differentiations which might be made among males and females. A generally recognized "corollary" or exception to even an "absolute" interpretation of the ERA is the proposition that laws which differentiate between the sexes are permissible so long as they are based upon the unique physical characteristics of a particular sex, rather than upon a person's membership in a particular sex per se. (book cited) In the instant case, it is apparent that the state's refusal to grant a license allowing the appellants to marry one another is not based upon appellants' status as males, but rather it is based upon the state's recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children. This is true even though married couples are not required to become parents and even though some couples are incapable of becoming parents and even though not all couples who produce children are married. These, however, are exceptional situations. The fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race. Further, it is apparent that no same-sex couple offers the possibility of the birth of children by their union. Thus the refusal of the state to authorize same-sex marriages results from such impossibility of reproduction rather than from an invidious discrimination "on account of sex." Therefore, the definition of marriage as the legal union of one man and one woman is permissible as applied to appellants, notwithstanding the prohibition contained in the ERA, because it is founded upon the unique physical characteristics of the sexes and appellants are not being discriminated against because of their status as males per se. In short, we hold the ERA does not require the state to authorize same-sex marriage. Regarding 8th, 9th, and 14th Amendments Appellants' final assignment of error is based primarily upon the proposition that the state's failure to grant them a marriage license violates the equal protection clause of the fourteenth amendment to the United States Constitution. (footnote dismisses claims based on 8th and 9th amendments.) The threshold question presented involves the standard by which to measure appellants' constitutional argument. We have held that the effect of our state marriage statutes is to prohibit same-sex marriages, and as a general proposition such statutes must be presumed constitutional. (case law cited) The operative effect of such a presumption is that the statutory classification in question-the exclusion of same-sex relationships from the definition of marriage-does not offend the equal protection clause if it rests upon some reasonable basis. (case law cited) Appellants contend, however, that a standard stricter than such a "reasonable basis" test must be applied to the operation of our state marriage laws. Appellants point out that a fundamental right-the right to marry-is at stake in the instant litigation (case law cited). Moreover, appellants, reasoning primarily by analogy from Loving and related cases, argue that the statutory prohibition against same-sex marriages constitutes a classification based upon sex. Therefore, appellants urge that the applicable standard under the equal protection clause requires that the classification be deemed "inherently suspect" and one which may not be sustained unless the state demonstrates that a "compelling state interest" so requires. (case law cited). We do not take exception to the proposition that the equal protection clause of the Fourteenth Amendment requires strict judicial scrutiny of legislative attempts at sexual discrimination. Our state Supreme Court has held that a legislative classification based upon sex is inherently suspect (case law cited). As we have already held in connection with our discussion of the ERA, however, appellants do not present a case of sexual discrimination. Appellants were not denied a marriage license because of their sex; rather, they were denied a marriage license because of the nature of marriage itself. Appellants appear to recognize the distinction we make because they also argue that the definition of marriage as it is reflected in our marriage statutes constitutes an inherently suspect classification because it discriminates against homosexuals as a group. In other words, appellants appear to present the alternative argument that although they are not being discriminated against because they are males, they are being discriminated against because they happen to be homosexual. Although appellants present argument to the contrary, we agree with the state's contention that to define marriage to exclude homosexual or any other same-sex relationships is not to create an inherently suspect legislative classification requiring strict judicial scrutiny to determine a compelling state interest. (case law cited.) The state contends that the exclusion of same-sex relationships from our marriage statutes may be upheld under the traditional "reasonable basis" or "rational relationship" test to which we have previously made reference. We agree. (footnote cites references to changing attitudes toward homosexuality, but concludes: "Notwithstanding these considerations, we express no opinion upon the desirability of revising our marriage laws to accommodate homosexuals and include same-sex relationships within the definition of marriage. That is a question for the people to answer through the legislative process. We merely hold such a legislative change is not constitutionally required.") There can be no doubt that there exists a rational basis for the state to limit the definition of marriage to exclude same-sex relationships. Although, as appellants contend other cultures may have fostered differing definitions of marriage, marriage in this state, as elsewhere in the nation, has been deemed a private relationship of a man and a woman (husband and wife) which involves "interests of basic importance in our society." (case law cited.) Accordingly, subject to constitutional limitations, the state has exclusive dominion over the legal institution of marriage and the state alone has the "prerogative of creating and overseeing this important institution." (case law cited) We do not seek to define in detail the "interests of basic importance" which are served by retaining the present definition of marriage as the legal union of one man and one woman. The societal values which are involved in this area must be left to the examination of the legislature. For constitutional purposes, it is enough to recognize that marriage as now defined is deeply rooted in our society. Although, as appellants hasten to point out, married persons are not required to have children or even to engage in sexual relations, marriage is so clearly related to the public interest in affording a favorable environment for the growth of children that we are unable to say that there is not a rational basis upon which the state may limit the protection of its marriage laws to the legal union of one man and one woman. Under such circumstances, although the legislature may change the definition of marriage within constitutional limits, the constitution does not require the change sought by appellants. As the court observed in Baker v. Nelson, supra at 312-13: The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. . . . This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation. The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. Thus, for the reasons stated in this opinion, we hold that the trial court correctly concluded that the state's denial of a marriage license to appellants is required by our state statutes and permitted by both the state and federal constitutions. The judgment is affirmed. [Petition for rehearing denied July 18, 1974. Review denied by Supreme Court October 10, 1974.]