Washington, N.J. may become next states to allow gay weddings
Another week has passed, and the nine justices of the Washington Supreme Court remain silent.
It has now been more than 14 months since the justices heard oral arguments in two same-sex marriage cases, taking the critical issue of Washington’s marriage laws under advisement. Activists who started holding their breath back in September are looking like David Blaine after six minutes under water.
In January, Chief Justice Gerry Alexander told the press that he hoped a decision would be handed down before the state legislative session ended in March. Pundits hopped on the statement like a dog on meat, speculating that the court would issue some kind of directive to lawmakers in their decision.
Perhaps, some suggested, the court would rule that marriage restrictions were unconstitutional, but then give the legislature the chance to fix the problem with some kind of parallel status.
A few weeks later, Alexander said he had not intended to set a deadline and was just speaking off the cuff. Sure enough, March came and went without word.
As the months go by, it’s hard not to notice that the November election is now just six months away. Three justices, including Alexander, are up for re-election in the fall. Would they hold back a controversial opinion in order to avoid defeat at the polls?
According to one lawyer with an ear to the ground, reliable sources have leaked out of both sides of the pitcher:
One source insists the ruling won’t come down before the voters weigh in. Another is adamant that the opinion will definitely arrive before November. Both gossips are reportedly in the know.
Other theories abound.
Maybe Washington does not want to be the second state to equalize marriage laws, and is waiting for New Jersey to act first. New Jersey’s high court heard oral arguments last February and is expected to rule at the very latest by next October, when the chief justice is stepping down.
It’s even more likely that New Jersey will rule in August, when the court has a pattern of releasing several opinions at once, particularly major decisions.
But the most likely explanation is that the court cannot convince a majority to agree on a particular legal theory or remedy. Assuming for the moment that most of the justices are in favor of striking the marriage law, there’s no reason toassume that they all agree on the rationale.
Does a bar to same-sex marriage violate Washington’s tough equal protection provisions by favoring heterosexual couples for no legitimate reason? Or as both lower courts ruled does the fundamental right to marriage apply to same-sex couples as well as others, obliging the government to provide a compelling reason for the denial of marriage rights?
Is the sex-based restriction on marriage a breach of the state’s equal rights amendment? Should gays and lesbians be considered a protected class entitled to strict scrutiny of laws that treat them unfairly?
And how about the remedy? Depending on the reasoning, should marriage laws be instantly revised to include gay and lesbian couples? How about a waiting period similar to one imposed by the Massachusetts court? Or, is there enough leeway to let the legislature set up some kind of civil union scheme as was ordered by Vermont’s justices?
Considering the complexity of the issue, it’s not hard to imagine any number of intellectual conflicts on the court. With a volatile subject in play and the certain uproar that would greet a marriage victory, it’s also certain that even if the majority agreed on a result, the court would not want to express their decision in a fractured series of concurring and dissenting opinions, all presenting different views of the legal issues at stake.
On the other side of the coin, this scenario is comforting to marriage advocates, since it would be far easier to craft a majority decision against same-sex marriage, where presumably everyone would agree that none of the arguments hold water.
The Washington court announces rulings on Thursday mornings, sending e-mails out to interested parties on Wednesday evenings. Of course, there’s nothing to stop the court from releasing their marriage decision without warning at 3 a.m. on a Sunday. But most people on both sides of the issue expect the court to follow its routine.
If the court is planning to rule in favor of same-sex couples, however, they may well wait until after the Senate vote on a federal marriage amendment, promised by Senate Majority Leader Bill Frist on or about June 5.
Having waited this long, it’s unlikely the justices would drop a bombshell into the incendiary debate on an amendment to the U.S. Constitution, defining marriage for the indefinite future as a gay-free zone. Since the main image used to promote a federal amendment is the specter of “activist” state courts imposing their ultra-liberal views of marriage on an unwilling nation, the Washington justices would no doubt wish to avoid personifying this threat and escalating a partisan showdown.
All this said, no one knows when the court will rule, what the court will say or why it’s taken them so long. According to the Associated Press in fact, the Washington Supreme Court recently took a full 22 months to issue an opinion, so the marriage cases aren’t even in the running for longest deliberation. Yet.
This article appeared in the Dallas Voice print edition, May 19, 2006.
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