Comments on: Dueling Court Opinions on Gay Marriage in Washington

By: gryphmon

gryphmon — Thu, 19 Aug 2004 19:19:12 +0000

“BTW, I’ve unbanned you so feel free to go back to posting under your real name, or at least pick one pseudonym and stick with it.”

Why thank you. I’ll “un-ban” you from my blog as well.:roll:

By: Xrlq

Xrlq — Thu, 19 Aug 2004 17:09:23 +0000

Huh? The right to traditional marriage as a “fundamental right” was affirmed in Loving v. Virginia, but the federal court case does not depend on that. Only the Washington state case does.

BTW, I’ve unbanned you so feel free to go back to posting under your real name, or at least pick one pseudonym and stick with it. Not that the pseudonyms really helped anyway, as you were previously banned by IP address, and not according to what name or email address you entered.

By: Grrr

Grrr — Thu, 19 Aug 2004 16:09:37 +0000

“it necessarily follows that one of these two cases was decided incorrectly.”

Or both were decided incorrectly. Following the logic of the NRO article, if there is no fundamental right to homosexual marriage based on “constitutional tradition” then there can be no fundamental right to heterosexual marriage either. While there is some mention of marriage in the form of not forcing a wife to testify against her husband, there is no “constitutional tradition” for the right to get married spelled out in the first place for anyone.

By: Xrlq

Xrlq — Thu, 19 Aug 2004 05:21:15 +0000

True, but that’s not what happened here. The Washington Legislature plagiarized the 14th Amendment because they wanted to plagiarize the result. Judge Downing didn’t even pretend to be applying a different standard under the Washington Constitution than he would have under the federal one.

By: ThePrecinctChair

ThePrecinctChair — Thu, 19 Aug 2004 01:10:23 +0000

On the other hand, even with the common origin you could get the radically different interpretations being valid, depending on how long ago the interpretation of the two diverged.

By: Xrlq

Xrlq — Wed, 18 Aug 2004 23:23:26 +0000

Yes. The point is not that the federal courts will eventually overrule the state on this issue – they won’t. The point is given the identical language and the common history of the two provisions, it necessarily follows that one of these two cases was decided incorrectly. Judge Downing himself effectively conceded as much by relying primarily on 14th Amendment cases, and not on cases interpreting its Washington counterpart. The only reason he didn’t come out and say that the law violated teh U.S. Constitution was because then he might (but probably wouldn’t) have handed the U.S. Supreme Court an issue to rule on eventually, as the DOMA case will.

If that doesn’t make things clear enough, try this instead. Assume that the DOMA case works its way up through the court and the U.S. Supreme Court rules once and for all that the equal protection, due process and P&I clauses of the 14th Amendment do not guarantee a right to gay marriage. Then take Judge Downing’s opinion, and cross out every portion that relies on federal cases implying that it does. There won’t be much left.

By: aphrael

aphrael — Wed, 18 Aug 2004 22:32:54 +0000

Hmm. I’m not a lawyer, but it seems to me that state courts can interpret language in the state constitution *differently* than how a federal court would interpret the identical language in the federal constitution. Since the feds won’t override a state’s interpretation of its own constitution, the state courts aren’t bound by the federal court interpretation of the language.

Or am I missing something?

By: Xrlq

Xrlq — Wed, 18 Aug 2004 22:19:23 +0000

C'mon, Aphrael, let's not get too clever about it. One judge ruled that Washington's traditional marriage law violates Article 1, Sec. 3 of the Washington Constitution, which provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law." The other court ruled that DOMA, which defines marriage the same way, does not violate the due process clause of the 14th Amendment, which provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." Nope, no conflict there. Add to that the fact that Judge Downing hardly cited any Washington cases, relying primarily on Lawrence v. Texas, Loving v. Virginia, a host of other 14th Amendment cases and, conveniently enough, the two foreign cases that found a "right" to gay marriage under their respective state constitutions. [He conveniently left out Hawaii.] Upon reading how he reached his conclusion that the Washington Constitution guarantees gay marriage, the conclusion is inescapable that one of these two judges simply screwed up.

By: aphrael

aphrael — Wed, 18 Aug 2004 21:11:57 +0000

Huh? They seem to be ruling on different issues. The first judge said that Washington’s state constitution requires gay marriage. The second one says that DOMA doesn’t violate the federal constitution. I don’t see the conflict between the two.