Defense of Marriage Act found Constitutional in Washington State
July 26th, 2006 | by Craig R. Harmon |Here you will find, in six separate .PDF files, the main decision, two separate concurrences, and three separate dissents. I haven’t read through them yet but I thought they’d be of interest to those who follow such things. From the main decision:
“The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer “yes,” and we therefore reverse the trial courts.
In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.
It is important to note that the court’s role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be.”
Right out of the “Non-Judicial Activist Judge’s Guidebook”.
8 Responses to “Defense of Marriage Act found Constitutional in Washington State”
By Demon Princess on Jul 28, 2006 | Reply
As a resident lof Washington state, I am deeply dismayed at this stupid, bigoted decision…note that it just BARELY squeaked by. It wasn’t a slam-dunk.
We have tghe same problem here as many other states: the big cities tend to be progressive, liberal & don’t see what all the fuss is about.
But our smaller towns, especially in the Eastern portion of the state, are filled with Bible-thumpers, who don’t at all see the silly hypocrosy of demanding that government keep hands off their private property but demand that it shove its hands down our pants & legislate what we do with our genitals, not to mention the separation of church from state issues I think are posed.
I personally think its something that government has no business legislating. Next they’d go back to preventing “miscenegation” of the races if they could get away with it. All of you with joneses for “exotic” partners, watch out!
By Craig R. Harmon on Jul 28, 2006 | Reply
Demon Princess,
So then you would disagree with judge Madsen when he writes:
? These aren’t, after all, the unwashed, illiterate masses speaking. These are, presumably, legally competent judges speaking from the highest bench in your state. Also, this decision has nothing to do with what anyone does with their genitalia. The only question before the court was, is it within the state Legislature’s authority, by the state Constitution’s grants of authority, to limit marriage to opposing gendered couples.
By Demon Princess on Jul 28, 2006 | Reply
Yes, Craig, I disagree, & other judges did, too. As we say in law school, “reasonable minds can differ,” & they do. I firmly believe in separation of church & state, & that legislating who can marry who (on whatever grounds) dissolves the boundaries. Making it a matter of state law when clearly homosexuality has always been with us is stupid & self-defeating ultimately. That says that committed homosexual couples cannot get the legal benefits of marriage, & the state should stay out of it.
P.S. There is always “legal authority” (however “out there”) for any position a lawyer wants to argue. Don’t let it make your head spin.
By Craig R. Harmon on Jul 28, 2006 | Reply
Heh! My head hasn’t stopped spinning since I exited the womb. I’m still trying to wrap my head around theology, my own area of semi-expertise. Law is pretty much a mystery although I’ve read a fair amount of legal writing that has helped demystify it all (Judge Posener’s Overcoming Law has been quite illuminating, for example) but I’m afraid it will always be, to a degree, like hocus-pocus to the layman who hasn’t become an expert in the field.
My point was, whether the law is what it is, it is the judges job to interpret and apply the law and constitution, not to make it up as it goes. Those who disagreed, it seems to me, were doing more of the latter than the former. Is it really that up in the air as to what precedents ought to control, or is it just in the stickier social situations (like gay marriage)? That certainly seems to be where the difficulties lay. But then, I’m an outside observer.
By Craig R. Harmon on Jul 28, 2006 | Reply
Er, I think that the first sentence of paragraph 2 should read:
“My point was, whatever the law is, it is the judges job to interpret and apply…”
Sometimes even I can’t make heads or tails out of what I’ve written.
By Demon Princess on Jul 28, 2006 | Reply
Well, Craig, if I were a judge, I’d certainly be what the neocons would call an “activist” as opposed to an “originalist,” but BTW, I think Scalia for instance, is an EXTREME activist by purporting to “go by only what is written”–the problem is, judges are ALWAYS called upon to interpret the law (that IS their job after all!!) Don’t let the words they term it distract you. They ALL engage in interpretation. A judge is always presented a specific set of facts & his/her job is to apply the relevant law. So what lawyers argue about are those two things: what ARE the facts (not nearly as objective as we’d all like to think) AND what is the relevant law, & how to interpret it.
Another maxim from the law is “hard cases make bad law,” & certainly, when we’re all still arguing whether homosexuality is genetic or a lifestyle choice, often influenced by what a person believes re religion, it is as you note a difficult sociological as well as cultural issue. And an awfully squishy thing to try to legislate, especially when there’s strong bigotry behind it. I’d tend to err on the side of NOT legislating it at all.
Is it a crime (something the state clearly has the power to define)? If it it is, who is hurt by it & what is the nature of the hurt/damage? Frankly, I see none, & I think it’s an abuse of state power to try to define it as a legal “wrong.” I’d say that’s between the people themselves & their God.
BTW, speaking of wrapping your head around concepts, I think your chosen area of expertise is the most difficult of all
By Craig R. Harmon on Jul 28, 2006 | Reply
Demon Princess,
I did gather that you were probably a latent activist. I agree that all written records require interpretation, and I’m not sure that Scalia would disagree with that (although being a layman observer, I don’t know that that’s true). After all, my entire education has been devoted to learning to interpret the scriptures and apply them to parishioners. It can’t be all that different in law.
I think the difference between a Scalia and one of the more liberal Justices is whether the text means something different today than it meant when it was written. Now in my theological training (although this is not universal to every denomination) we are trained to try to arrive at the sense of a text that it had when it was written, which would be the text’s meaning, and then apply that to the parishioners’ lives today, that is, how does that meaning make sense in our life today. However we definitely do not go in for a living scripture in the sense that an Old Testament text means today anything that it didn’t mean when it was written. How it applies to today’s life will change with the world in which we live but a text’s meaning will forever mean what it meant when it was written.
However, not every Christian would agree with that. For many Christians, the only meaning that matters is the meaning that strikes them at the time of the reading so lots of Christians are as much “living scriptures” interpreters as some judges are “living Constitution” interpreters. My position is that I know and try my best to convey meaning to my readers through the words I choose. I would spin in my grave if future readers decided that my words no longer mean what I meant when I wrote them. I recognize that words change as time goes on but what I mean by the words that I use, according to the simple meaning of those words today, if that makes sense.
Oh, you say that you would prefer that marriage not be legislated. Fine, but that’s a criticism of the Legislature of Washington state. Given that marriage has been and is currently legislated, doesn’t a judge have to uphold a law that he or she cannot find constitutional reason for striking down?
By Craig R. Harmon on Jul 28, 2006 | Reply
Expecting future generations to interpret my meaning, of course, depends on communicating meaning. My last sentence of the third (second from last) paragraph should read:
“I recognize that words change as time goes on but what I mean by the words that I use, according to the simple meaning of those words today, is what I mean to say if that makes sense.”
That is to say, don’t go making me say something tomorrow that I haven’t said today.