Analysis of latest marriage decision in WA


E-news from CCVAugust 4, 2006

Washington State Decision Denies
Homosexual Activists’ Claim of Minority Status

Last week we celebrated another victory for marriage in the courts.

The State of Washington’s Supreme Court overturned the decision of a lower court and upheld Washington’s 1998 Defense of Marriage Act (DOMA), which confirmed the truth of marriage as the union of one man and one woman only.

The Washington decision was the latest in a string of state court rulings in favor of traditional marriage, including decisions in Tennessee, Nebraska, Georgia, Massachusetts and New York.

Last week’s Washington decision, however, has proven particularly troublesome to homosexual activists.  The majority opinion of Justice Barbara Madsen strikes at the most fundamental precepts of the homosexual advocate’s agenda.

Most fundamentally, Justice Madsen states that the plaintiffs – 19 homosexual couples – failed to demonstrate that homosexuality was an immutable characteristic. In that the plaintiffs’ attorneys were unable to provide evidence to the contrary, Justice Madsen accepted the view of the State that “homosexuality is behavioral, and thus not immutable.”

The plaintiffs’ attorneys argued that the court’s review of the decision should treat the plaintiffs as a “suspect class,” i.e., a class entitled to special protection, including a more “searching review.”

Minority Qualifications

But Justice Madsen pointed out that in order to qualify as a suspect class for purposes of such an analysis,

“the class must have suffered a history of discrimination, have as the characteristic defining the class an obvious, immutable trait that frequently bears no relation to ability to perform or contribute to society, and show that it is a minority or politically powerless class.”

In addition to failing to meet the immutable characteristic test, Justice Madsen said that those identifying themselves as homosexual failed to meet the “politically powerless” criterion as well.  She wrote, “The enactment of provisions providing increased protections to gay and lesbian individuals in Washington shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power.”

“I can assure you,” said Citizens for Community Values president Phil Burress, “the plaintiffs in this case had the best lawyers available.  But the fact is – the evidence simply isn’t there.  Homosexuality is not an immutable characteristic.  And being ‘homosexual’ does not qualify a person for protection under the laws designed to protect those who have suffered real discrimination due to skin color, ethnicity, or other truly immutable, non-behavior-based characteristics.”

Burress pointed out that the Washington majority decision was not written by a justice known for her conservatism.  But he praised Justice Madsen’s objectivity.

“Justice Madsen understands the proper role of the judiciary,” said Burress, “and she stated it precisely: ‘Personal views must not interfere with the judge’s responsibility to decide cases as a judge and not as a legislator.’

“Unfortunately, though,” cautioned Burress, “there are too few judges who recognize their proper role.  Homosexual advocates will continue to take their attack on marriage to the courts, and there are sympathetic judges who are willing to usurp the right of the people to decide this issue through their elected representatives or by popular vote.  The fundamental institutions of marriage and family will remain at risk until we take marriage out of the hands of state and federal judges by embedding the definition of marriage in the U.S. Constitution through a Marriage Protection Amendment.”