February/March 2005: Spring thaw

New York

In February 2005, we have a win in lower court in New York City in Hernandez v. Robles, one of the cases filed in 2004.

[The State] has not presented even a legitimate State purpose that is rationally served by barring same-sex marriage. Accordingly, this Court concludes that [the State’s] denial of plaintiffs’ requests for marriage licenses violated plaintiffs’ right to the equal protection of the law.

Washington State


Couples and families, plaintiffs in Andersen v. King County	The Castle/Bauers

In March, the Washington State Supreme Court hears the combined Andersen and Castle cases. The court is asked to decide three constitutional issues, all of which we’ve seen in the prior cases: equal protection, sex discrimination, and liberty.

The issue of equal protection is based on the “Privileges and Immunities” clause of the Washington State constitution which forbids the State from “granting to any citizen [or] class of citizens… privileges or immunities which upon the same terms shall not equally belong to all citizens.”
The state’s Equal Rights Amendment, ERA, forms the basis for the sex discrimination issue. Washington is one of only 20 states with a constitution that prohibits discrimination on the basis of sex.
And third and most important is liberty, the freedom to marry, based upon the precedents that marriage is a fundamental right. Being a fundamental right, it is protected from a public vote and from legislative action, and the government can’t withhold it without a compelling reason, narrowly tailored and rationally applied – or what our constitution calls due process of law.

California

Also in March, a California superior court rules favorably in the six cases, including Woo v. Lockyer, that arose out of the San Francisco marriages. The judge cites Perez, Loving, Romer, and Lawrence in concluding that the State’s tradition and procreation arguments aren’t applied to opposite-sex couples, so by what reason can they be applied to same-sex couples:

“[M]arriage is available to heterosexual couples regardless of whether they can or want to procreate. … Persons beyond child-bearing age, infertile persons, and those who choose not to have children… are allowed to marry even though they do not satisfy any perceived legitimate compelling governmental interest in procreation. {In this next part, the judge overgeneralizes because many same-sex couples have children, but regardless, he writes…} [S]ame-sex couples[] also do not satisfy any such perceived interest [in procreation], yet unlike the other similarly situated classifications of non-child bearers, same-sex couples are singled out to be denied marriage.”

“[T]he advocates of opposite-sex only marriage have failed to offer any explanation whatsoever for such disparate treatment of similarly situated classifications. … Thus the denial of marriage to same-sex couples appears impermissibly arbitrary.”

The case now moves into appeals, ultimately to be decided by the California Supreme Court.

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)