Summer 2004: Highs and lows

Same-sex couples have the right to marry…

In July 2004, the American Civil Liberties Union along with nine couples and one individual file suit seeking the right to marry in Maryland’s Deane & Polyak v. Conaway.

And in August, Andersen v. King County provides the first of two tremendous wins in Washington State.

Couples and families, plaintiffs in Andersen v. King County

Quoting the string of marriage cases and with frequent references to the state constitution, King County Superior Court Judge Downing rules that the state DOMA is unconstitutional under the state constitution and that same-sex couples must have the same right to marry as do opposite-sex couples.

Applying the rational basis standard, the judge rules that it simply makes no sense that allowing same-sex couples to marry does harm to the children of opposite-sex couples. And because stopping their parents from marrying clearly does harm the children of same-sex couples, rationality is on the side of allowing marriage:

It is good for children to be raised in stable families with a father and a mother. … But, can it be said that fewer children will have this stability because couples consisting of two men or two women are allowed to have a relationship that is state-sanctioned? There is no reasonable explanation for why this would be so. There is no reasonable expectation that … married fathers and mothers will abdicate their parental responsibilities or young would-be parents will defect from the ranks of heterosexuals.

In regard to equal treatment, he rules,

The privilege of civil marriage and the various privileges legally conferred by that status are not being made equally available to all citizens.

And in regard to due process,

The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process.

On the subject of civil unions, the judge writes,

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’ or other variations on the theme… there could be a real danger. … [M]arriage, 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.

By prior agreement, the judge stays his ruling pending appeal to the Washington State Supreme Court.

…while 4,000 married couples are forcibly divorced…

But in California, the state supreme court forcibly divorces the 4,000 happily-married San Francisco couples (including your author).

Is it because they’re using up all the marriage licenses and keeping opposite-sex couples from getting married? No. Is it because same-sex couples shouldn’t be allowed to marry? No, that case, Woo v. Lockyer filed in March, is still pending. The court rules that the mayor merely didn’t have the authority to grant the marriages:

To avoid any misunderstanding, we emphasize that the substantive question of the constitutional validity of California’s statutory provisions limiting marriage to a union between a man and a woman is not before our court in this proceeding, and our decision in this case is not intended, and should not be interpreted, to reflect any view on that issue. We hold only that in the absence of a judicial determination that such statutory provisions are unconstitutional, local executive officials lacked authority to issue marriage licenses to… same-sex couples.

…and setbacks happen in two other states

Gov. Romney of Massachusetts

Meanwhile in Massachusetts, a lower court issues a ruling in Cote-Whitacre v. DPH. It says that Romney the governor does have the authority to resurrect the 1913 law and enforce it to keep out-of-state same-sex couples from marrying in his state.
And the citizens of Missouri vote to put up a on their constitution.

Timeline key: progress (green), no progress (red), pending court cases (purple),
events that are neutral, not directly related, or with both positive and negative effects (black)