September 2007
Marriage Equality: Why Gay and Lesbian Couples Shouldn’t Be Excluded
by Patricia Novotny
Beth Reis and Barb Steele, on the threshold of life’s final journey, would like to marry one another. After three decades together, rearing children, caring for one another and their parents, and working hard to meet their many obligations, they would like, at last, to enjoy the myriad forms of support for their family their married friends enjoy. Michelle Esguerra and Boo Torres de Esguerra, young and newly coupled, likewise want some of the “instant” security that marriage brings, as well as the recognition of the commitment they have publicly proclaimed to their families and friends. Peter Ilgenfritz and David Shull, Protestant ministers, married in the eyes of their own church and authorized by the state to marry others, also want the tangible good of civil marriage. So do the Serkin-Pooles, David and Michael, as much for the sake of their three children as for the sake of their mutual love. For the other 30 plaintiffs in Andersen v. King County1 and Castle v. State, the story is the same: No matter their ages or the age of their relationships, their financial circumstances, their religions and races, they each have made a lifelong commitment to one another and they each want to be married in the eyes of the law.2
In Washington, as in other states, these same-sex couples challenged their exclusion from civil marriage on state constitutional grounds. In particular, the plaintiffs claim deprivations of the fundamental right to marry, the privileges and immunities clause, and the equal rights amendment. Each of these claims, outlined below, necessarily interrogates the nature of civil marriage.
One misleading feature of the current debate is the positioning of marriage as “traditional,” meaning a static bedrock, one under attack by same-sex couples and other societal forces. This positioning of marriage as an immutable “thing” obscures the reality that the civil institution of marriage is in fact a “place.” It is a place where private life takes on public meaning, where the state, with its many regulations of person and property, and the family meet. And this place is always under construction. Just as private configurations of family have always been and remain in flux, the state’s use of the family has been similarly adaptive.
As a private commitment or religious sacrament, marriage is “older than the Bill of Rights.”3 In these forms, it is also extremely variable across time, culture, and religions. For example, until recently, marriage was a permanent bond, and remains so in certain cultures and religions. Many religions prohibit interfaith marriage. Some cultures permit husbands to take multiple wives. Some arrange marriages. Not that long ago, it was common practice for 16-year-old females to marry (usually older males), and it remains common in many cultures and subcultures. In the Western tradition, romantic love between spouses was anomalous until relatively recently. Likewise, wives were subordinated to their husbands, their own rights sharply curtailed, including the right to refuse sex. Some religions and individuals still adhere to the view that wives must submit to their husbands. With respect to marriage between same-sex couples, religious practice varies, with some religions permitting it and others not. In short, the practice of marriage is, and always has been, varied and dynamic.4
Civil marriage must be distinguished from these cultural and religious practices. Though sometimes public and private forms overlap, civil or legal marriage is distinct, insofar as it accomplishes state purposes. For example, just as people may privately hold religious and moral views on proper sexual conduct, whether and to what extent the law may regulate sexual activity necessarily requires a legal analysis.
Specifically, any analysis of who may enter into civil marriage must begin with an inquiry into the state’s purpose in regulating this area at all. It is one thing for the state not to interfere with marriage practices and another thing for the state to promote a form of marriage. We recall that one revolutionary aspect of America from its inception is the notion of limited government. The state cannot involve itself in our lives arbitrarily, but, rather, must always act within the confines of the power granted it by the people. In other words, it must have a constitutionally satisfactory purpose.
In particular, when the state confers upon some, and not others, a particular status from which flows benefits, burdens, or both, the question of who gets into this “club” leads first to the question of what purpose the club serves. Why is there civil marriage at all? The Washington State Supreme Court answered this question by reducing marriage to a regulation of sexual activity, specifically, sexual activity with procreative potential, and to child-rearing by these theoretical biological progenitors. In other words, civil marriage exists because heterosexual intercourse between a fertile male and a fertile female may result in children, and children are best reared by their biological mother and father. In fact, no one, not even the Legislature, let alone the public at large, views marriage in such narrow terms (or has ever viewed marriage in such narrow terms), nor do the state’s laws implement this alleged purpose.
Viewed historically and presently, the simplest explanation for what the state does through marriage is to help family members care for one another, thus stabilizing society and minimizing the demands on it from dependent citizens. By enhancing private caretaking, the state enhances public welfare. Spouses care for one another, for their children if they have children, for their parents as they age, for their siblings and extended family members. They benefit in these endeavors from commitment to one another, maximizing economies and efficiencies, and they benefit from the support provided them by the state. People do these activities without marriage, to be sure, but marriage helps them to do them more effectively. In short, the public good of marriage is the private good it accomplishes.
Marriage is not the only means to this end. In Canada, for example, the state distributes benefits and obligations through many mechanisms unrelated to marital status, thus expanding the reach of its “social security” network beyond the privatized model exemplified by the marriage-centric practice in the United States. Many argue that greater precision in benefit distribution can be achieved by focusing on the caregiver-dependent relationship, regardless of marital status.5 An adult child caring for a dependent parent might qualify for an array of benefits, just as unmarried cohabitants might be obligated to provide mutual support as part of an educational benefit calculation. In the United States, tentative movements toward this kind of “à la carte” benefits scheme are apparent in the Family Medical Leave Act (allowing leave for caretaking of a parent) and in Washington’s recently enacted Domestic Partnership Act (permitting senior different-sex couples access to a handful of benefits without having to marry). Arguments against the almost complete reliance on marriage as a distributive system for benefits and obligations are beyond the scope of this article. However, such arguments certainly merit our attention, given the widespread proliferation of extramarital, nonmarital, and postmarital interdependent relationships.
The point, here, is to emphasize that civil marriage must serve a civil purpose, and that purpose must in turn be served by the definition of who may marry. Since the purpose of civil marriage is accomplished through the marriage of same-sex couples, who, like their different-sex counterparts, have made a lifelong commitment to one another, and there being no justification for exclusion, Washington’s Constitution mandates such couples be allowed to marry. In short, if there is to be civil marriage, then it must be available on equal terms to all who fulfill the purpose of the state’s involvement in this area.
Liberty: The Fundamental Right to Marry
In Washington, the fundamental right to marry resides in our constitutional guarantees of liberty, privacy, and intimate association. Const. art. I, § 3 (“No person shall be deprived of life, liberty, or property, without due process of law”); Const. art. I § 7 (“No person shall be disturbed in his private affairs . . . without authority of law”). This claim poses a philosophical question as well as a legal one. It asks us what marriage means. And it asks how that definition affects who may enter into civil marriage. As discussed above, the meaning of civil marriage is, necessarily, broader than any cultural or religious practice, since we are a pluralistic nation. The state does not restrict interfaith marriages, nor, any longer, interracial ones. Plaintiffs argue further that the meaning of marriage changes over time, just as marriage itself does. Indeed, the state does not purport to define what marriage means to those who marry. It does not make marriage permanent. It does not require you to love one another, or to be sexually intimate, or to procreate, or to adhere to or embrace any other belief about marriage. Rather, people who marry are free to create their own meaning. The state’s sanction arises only because, by marrying, people undertake a commitment to mutual caregiving, which the state uses, supports, and enforces. Thus, the right to marry means the right to choose whom you declare “next of kin.” Unless a countervailing interest exists, such as age (affecting the capacity to make the choice) or consanguinity (undermining the family’s stability), the state may not interfere with the exercise of this right. Thus, the plaintiffs urge a characterization of the right that excludes only for a compelling reason.
By contrast, the Court held that the right extends only to marrying a person of the “opposite” sex, since that is the “tradition” of marriage, meaning the plaintiffs cannot marry because they could not marry before. Thus, the Court frames the question as whether there is a fundamental right to “same-sex marriage.” Not only does this cramped construction entomb the fundamental-rights analysis, dooming us merely to repeat the past rather than create the future, it echoes the similarly misguided analysis of Bowers v. Hardwick, where the U.S. Supreme Court in 1986 narrowly rejected a claim that the right to privacy protected consensual adult sexual activity from state criminalization.6 The majority in Bowers recast the question as whether there was a fundamental right to homosexual sodomy. In 2003, in Lawrence v. Texas, the Court repudiated this approach, agreeing with the dissent in Bowers that the claimed interest was broader, a right to be let alone in making personal choices, in making meaning of one’s own life.7 Just as Michael Hardwick wanted a right to privacy, not a right to homosexual sodomy, the Andersen/Castle plaintiffs want marriage, not “same-sex marriage.”
However, the Washington State Supreme Court took the narrow view of the inquiry, despite that, as Oliver Wendell Holmes observed: “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV.”8 Thus, the court committed the same error as in Bowers, “fail[ing] to appreciate the extent of the liberty at stake.”9 An inquiry more like that articulated in Lawrence, which recognizes “tradition is a living thing,”10 and encompasses not only the past but the present and future, would grant these couples the right to marry the person they love.
Sex Equality
Another fundamental right, enshrined in Washington’s Equal Rights Amendment, is the right to sex equality. Since 1972, our Constitution has flatly declared that “equality of rights and responsibilities under the law shall not be denied or abridged on account of sex.” Const. art. XXXI, § 1. Washington’s Defense of Marriage Act (DOMA) violates the ERA. It permits or prohibits individuals to marry based upon their sex. DOMA provides that “[m]arriage is a civil contract between a male and a female,” “and prohibits marriage [w]hen the parties are persons other than a male and a female.”11 Thus, the statute plainly restricts the right to marry based on the sex of an individual. If Beth Reis were a man, she could marry Barb, her beloved partner of 27 years, but because she is a woman, she may not. The sole reason for this prohibition is Beth’s sex.
The State conceded that DOMA classifies by sex but argued that it does not discriminate by sex because the restriction applies equally to males and to females. But this reasoning was rejected decades ago by the U.S. Supreme Court when it struck down a law restricting the right to marry on the basis of race, though the law treated the races equally.12 Though Virginia prohibited both Richard Loving, who was white, and Mildred Loving, who was black, from marrying each other, the Supreme Court recognized that predicating the right to marry on “distinctions drawn according to race” denied both Mildred and Richard the equality guaranteed to them by the equal-protection clause. In the same way, DOMA is unconstitutional because it limits the right to marry based on distinctions drawn according to sex.
The State tried to distinguish Loving by arguing that race discrimination is invidious, while sex discrimination is not. Washington’s citizenry believe otherwise, or there would be no ERA, no need to constitutionally mandate sex equality. Certainly, each individual plaintiff in the case experiences the sex discrimination of DOMA as invidious, and it is each individual’s right that is at stake. Being deprived of a civil right is not remedied just because someone else also is deprived, as the U.S. Supreme Court found when it rejected an “equal application” argument in support of restrictive covenants.13 It was “no answer” to the black petitioners that whites might also be denied rights of ownership and occupancy. Likewise, it is “no answer” to Beth Reis that David Serkin-Poole is also denied the right to marry his beloved. Each is denied the right to marry on account of sex, and that violates the ERA.
Privileges and Immunities
The plaintiffs also challenged their exclusion from civil marriage under art. I, § 12 of the Washington Constitution, which forbids the “granting to any citizen [or] class of citizens . . . privileges or immunities which upon the same terms shall not equally belong to all citizens.” The Andersen/Castle plaintiffs argued they deserved equality in marriage, i.e., marriage as a “bundle” of “privileges and immunities.” However, Judge William Downing, in King County Superior Court, observed that the remedy for the constitutional violation might be a form of marriage equivalency, or the “sticks” that comprise civil marriage (i.e., the 423 laws in Washington that benefit and obligate individuals based on marital status). Indeed, the Vermont Supreme Court fashioned its own remedy (civil union), as courts often do, despite that the plaintiffs there likewise sought marriage.14 By contrast, the Washington State Supreme Court declared itself constrained to the remedy sought by the plaintiffs, and did not reach the question of whether denying same-sex couples the “sticks” of marriage violates the privileges and immunities clause.
Thus, bundled or not, DOMA denies the “privileges” of marriage to individuals in same-sex couples. The plaintiffs urged the court to review that denial with heightened scrutiny, contending that sexual orientation constitutes a suspect class. The class is defined by a characteristic central to identity, whether innately, immutably, or so substantially that the individual cannot be expected to change it. The class has experienced a history of discrimination and is a minority, politically powerless to countermand majoritarian dislike. Nevertheless, the Court declined to find that sexual orientation constituted a suspect class and, accordingly, reviewed the challenged exclusion from marriage under Washington’s rational relationship test.
Even on this deferential view, the state must justify excluding the class of same-sex couples from marriage. As our court has explained, to satisfy Washington’s constitution, classifications must “rest on real and substantial differences bearing a natural, reasonable, and just relation to the subject-matter of the act.”15 In other words, discrimination must be justified by a legitimate state interest that is somehow advanced by the discriminatory classification. Or, as the Vermont court stated, “the exclusion of same-sex couples from the benefits of marriage [must bear] a ‘reasonable and just relation’ to the governmental purpose of the exclusion.”16
To the plaintiffs, it seemed obvious that depriving them of the benefits of marriage serves no legitimate governmental purpose. Who benefits from this deprivation? Marriage is not, after all, a finite resource. It seemed obvious that the only purpose accomplished by DOMA is the singling out of committed same-sex couples for disadvantageous treatment. In upholding DOMA, the court did not rely on this improper purpose, nor did it even try to identify the proper governmental purpose achieved by the exclusion. Rather, the plurality and concurring opinions analyzed the relationship between the classification and marriage, rather than between the classification and DOMA, as the constitutional test requires. This analysis is misplaced, since marriage is not the legislative act being challenged, and is not a single “act” at all, but a “bundle” of 423 separate legislative acts. To approach the challenge in this way, the Court would have needed to review the relationship between the exclusion of same-sex couples and every one of the 423 legislative acts that comprise the benefits and obligations of marriage. For this reason, the proper analysis was undertaken by Justice Fairhurst in her dissenting opinion. In short, the question before the Court was the exclusion from, not the existence of, civil marriage itself. This question was left unanswered by the Court.
Rather, the Court explained that marriage is for different-sex couples only because they (or some of them) can procreate without third-party assistance and because biological progenitors make better parents.17 Besides not answering the question, the Court boiled all the myriad functions of civil marriage to the bearing and rearing of children, and then designated a particular kind of family unit as preferred. Thus, the Court’s procreation argument “singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.”18 However, it is clear from Washington law that encouraging procreation and parenting by biological progenitors is not the essential purpose of civil marriage, since, for example, “the sterile and the elderly are allowed to marry.”19 Marriage eligibility is not determined by an ability or intention to have children, or by whether children in marriage are the biological offspring of the spouses. Indeed, people who have never had sexual relations in their marriage, and never plan to, may be married and may stay married.20 What these marriages have in common is not children, or biologically related children, but the mutual commitment of the spouses, which is the sine qua non of marriage.21
Even if marriage encouraged procreation and parenting, denying marriage to same-sex couples does not, and this is the Achilles’s heel of the Court’s analysis. There is no evidence that people marry and procreate because same-sex couples cannot marry and procreate (without third-party assistance), meaning there is no link between DOMA and any legitimate state purpose. In fact, offering to the plaintiffs’ children the benefits enjoyed by their peers, to be raised with the greater security and stability marriage affords to families, advances the state’s interest in children without in any way — not in any single respect — diminishing the value of marriage to children of different-sex couples.22 Certainly, it is not rational for the state to declare on one hand an equal interest in the well-being of all children, and then on the other hand to treat some of these same children as “outliers.”23 Indeed, for the state to pick and choose which children it will protect, especially since it establishes no barriers to parentage, sets the clock back to an era when eugenics-based arguments and the designation of some children as “illegitimate” held sway, an era properly left to the dustbin. As the Court acknowledged, “many day-to-day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples.”24 Thus, DOMA actually harms some children.
By this means, the state regresses from the modern view of protecting all parent-child relationships — regardless of the sex of the parent, and regardless of whether the parent-child relationship exists due to sexual intercourse, medically assisted reproduction, de facto parentage, or formal adoption. In this century, our law makes no distinction between children whether their parents marry, whether their parents are genetically related, whether their parents conceive them through sexual intercourse, or conceive them at all.25 Our law declares all children to be equally deserving of the state’s solicitude, with one exception, and that exception is at issue here.
And that is DOMA’s problem and the problem with the Court’s failure to justify the exclusion of same-sex couples from marriage. Just as privileging different-sex couples simply because that has been done historically, preferring them as parents just because they are different-sex couples merely restates the discrimination wrought by DOMA, it does not justify it. As the U.S. Supreme Court observed, a state’s purpose for distinguishing among persons must not only be “legitimate,” but it also must be “independent” of the classification itself. “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”26 Rather than representing a proper government purpose, a legislative classification that merely endorses one family configuration over all others is an improper “classification undertaken for its own sake” without any independent basis.27
In short, DOMA excludes for the sake of excluding. It accomplishes no legitimate state purpose. It declares a class of citizens inferior and makes life for their families harder without, in any way, shape, or form, making life better for anyone else. It remains a stain on our public conscience. With all due respect to the Court, it is unconstitutional.
Patricia Novotny earned her B.A. from Reed College and her J.D. from the University of Washington. A Seattle attorney, she practices appellate law, emphasizing family law. Ms. Novotny also teaches Women and Law at the University of Washington in the Women Studies Department and a course on gender, sex, and sexuality at the university’s law school. She is a long-time volunteer attorney with the Northwest Women’s Law Center and was co-counsel in the King County marriage litigation, Andersen et al v. Sims, and argued on behalf of those plaintiffs before the Washington State Supreme Court.
NOTES
1. The author acknowledges that portions of this article likely bear some resemblance to various of the briefs filed in the Andersen case and, accordingly shares authorship credit with the many fine and dedicated attorneys who collaborated on those briefs. Any failures to impart accurately the arguments made in those briefs are my own.
2. Andersen v. King County, Castle v. State, 158 Wn.2d 1, 138 P.3d 963 (2006).
3. Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 1682, 14 L. Ed.2d 510, 516 (1965).
4. For more on marriage studied over time and culture, please see: Coontz, Stephanie, Marriage, A History: From Obedience to Intimacy, Or How Love Conquered Marriage (2005); Coontz, Stephanie, The Way We Never Were: American Families and Nostalgia Trap (1992); Grosberg, Michael, Governing the Hearth: Law and Family in Nineteenth Century America (1985); Chauncey, George, Why Marriage? The History Shaping Today’s Debate Over Gay Equality (2004); Cott, Nancy, Public Vows: A History of Marriage and the Nations (2000).
5. Prominent among advocates of a greater focus on the caregiver-dependent relationship is Martha Albertson Fineman, professor at Emory University Law School, whose many works examine the impact of law and policy on families.
6. Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed.2d 140 (1986.
7. Lawrence v. Texas, 539 U.S. 558, 567, 123 S. Ct. 2472, 156 L. Ed.2d 508, 518 (2003).
8. Holmes, Oliver Wendell Jr., “The Path of Law,” 10 Harv. L.J. 457, 469 (1897).
9. Lawrence, 539 U.S. at 567.
10. Poe v. Ullman, 367 U.S. 497, 542, 81 S. Ct. 1752, 1776, 6 L. Ed.2d 989, 1019 (1961) (Harlan, J., dissenting).
11. RCW § 26.04.010(1) and RCW § 26.040.020(1)(c).
12. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed.2d 1010 (1967).
13. Shelley v. Kraemer, 334 U.S. 1, 22, 68 S. Ct. 836, 846, 92 L. Ed. 1161, 1185 (1948) (equality rights are “guaranteed to the individual. The rights established are personal rights.”).
14. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 (1999).
15. Grant County Fire Protection District v. City of Moses Lake, 145 Wn.2d 702, 732, 42 P.3d 394 (2002) (Grant County I) (quoting State ex rel. Bacich v. Huse, 187 Wash. 75, 80, 59 P.2d 1101 (1936).
16. Baker v. Vermont, at 744 A.2d at 878-79.
17. The assertion that married biological progenitors make the best parents is not supported by any credible science. The “studies” cited in support of this position compare married parents to divorced parents (i.e., apples to oranges). They provide no support for the proposition that married biological progenitors are superior to any other kind of parenting couple. Obviously, the assertion insults not only lesbian and gay parents, but adoptive parents, presumed parents, and parents by ART (assisted reproductive technologies). Moreover, this clarification does not suggest that single parents are inferior parents.
18. Goodridge v. Department of Health, 440 Mass. 309, 798 N.E.2d 941, 962 (2003).
19. Lawrence, 539 U.S. at 605 (Scalia, J., dissenting).
20. See, e.g., Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed.2d 64 (1987) (prison inmates may marry).
21. Compare Goodridge, 440 Mass. at 332, 798 N.E.2d at 961 (“While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted by technology or adoption), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”).
22. See Goodridge, 440 Mass. at 335, 798 N.E.2d at 964 (“Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of ‘a stable family structure in which children will be reared, educated, and socialized.’”); Baker v. Vermont, 170 Vt. at 219, 744 A.2d at 882 (“If anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.”).
23. Goodridge, 440 Mass. at 335, 798 N.E.2d at 963 (“the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws.”).
24. Andersen, 138 Wn.2d at 985.
25. In fact, Washington affirmatively facilitates adoption, RCW § 26.33; permits the use of assisted reproductive technology, RCW § 26.26.101(e), RCW § 26.26.210-260, RCW § 26.26.700 et seq.; enforces parenting obligations similarly among the married and unmarried, RCW § 26.26.101; and does not discourage contraception. O’Hartigan v. Dept. of Personnel, 118 Wn.2d 111, 117, 821 P.2d 44 (1991) (interest in autonomy is fundamental and therefore accorded utmost constitutional protection; this right “involves issues related to marriage, procreation, family relationships, child rearing and education.”).
26. Romer v. Evans, 517 U.S. 620, 632, 116 S. Ct. 1620, 1627, 134 L. Ed.2d 855, 866 (1996).
27. Romer, 517 U.S. at 635, 116 S.Ct. 1620.
