I am so excited to write about this, because although she hasn't been the greatest on every issue, I've always had a soft spot for her: according to local gay blogger (and total cutie) Joe Mirabella, senator Maria Cantwell has endorsed marriage equality for Washington State.
Joe went to one of Cantwell's fundraisers on Tuesday night (she is up for re-election in 2012). Cantwell indicated she would publicly endorse marriage equality in Washington should it reach the ballot:
The big question in Washington State right now for gays and lesbians is whether we will push for the freedom to marry in 2012.
I asked Senator Cantwell in front of 40 or so attendees, if marriage for gays and lesbians was on the ballot in 2012, would she publicly support marriage for gays and lesbians. She quickly responded, "Yes."
Senator Cantwell also spoke about how frustrated she was with the gridlocked Congress because equality issues can not move forward.
She endorsed the repeal of DOMA, the passage of ENDA, was strongly supportive of the repeal of "Don't Ask, Don't Tell", as well as dozens of other line item issues that must be reformed in our legal code for our families to be treaded equally under the law.
This is wonderful news, especially coming from a candidate who is up for re-election this cycle.
And sorry to be all over the map, but I think I should give you all a bit of background on what has happened in our state with regard to marriage equality. Back in 2004, Lambda Legal filed suit in King County Superior Court challenging the constitutionality of the Washington Defense of Marriage Act, an odious law passed in 1998, when such things were all the rage (this was the Anderson v. Sims case). Around the same time, the ACLU filed suit in Thurston County Superior Court on behalf of several same sex couples challenging the law (the Castle v. State case).
In August 2004, Judge Downing issued his ruling in the Anderson case, holding the law violated both the federal and state constitutions; specifically, the state had no rational basis for excluding same-sex couples from the rights and benefits of marriage, thereby violating (among other things, if I recall properly) the state constitution equal protection provision. In September 2004, Judge Hicks in Thurston County Superior Court followed suit, and declared the law unconstitutional. (Hopefully I'm remembering these two trial court opinions properly - it's possible I mixed the two up, but the important thing is that at least one of them found the law violated the State constitution. Washington is not like California; had the Supreme Court upheld the trial courts, it would have been impossible to pass a constitutional amendment banning gay marriage).
In 2006, our Supreme Court issued a very fractured opinion, upholding the constitutionality of the law, 5-4. I say "5-4", but there were six opinions. The lead opinion was written by a jurist, Justice Barbara Madsen, who in my opinion is usually very good. Re-reading this opinion reminds me of why I was so disappointed in her, and that her legacy on the court has been diminished significantly by this opinion. To me, it was a flat, unemotional, marginally technocratic defense of the law. IMO, it relied on circular reasoning to reach it's result that the state DOMA didn't violate the constitution. Justices Alexander and Charles Johnson concurred. Very obviously disappointing to say the least.
It paled in comparison, however, to the vile, disgusting, and homophobic concurring opinion of Justice Jim Johnson (co-signed by now former Justice Richard Sanders, who lost his seat last year). In his opinion, Jim Johnson peddled bigotry lifted from trial experts spewing right-wing crap. Here is a sample of the bullshit:
Before redefining a social institution, the legislature should consider ramifications flowing from all three of these couple communities and the resulting impact on the social fabric and on children.
The first obvious and relevant fact is that female couple households are necessarily fatherless and male couple households are necessarily motherless. Each of these differences from the optimum mother/father setting for stable family life may offer distinctive disadvantages.
Studies summarized in the record before one trial court demonstrated that an absent father "is associated with quantifiable deficits in children at every stage of the lifecycle, persisting not only in the adulthood of the child, but even into the next generation." A similar problem has been indicated of families without a mother, although the number of male unions with children is far smaller.
Direct comparisons between opposite-sex homes and same-sex homes further support the former as a better environment for children. For example, studies show an average shorter term commitment and more sexual partners for same-sex couples.
Studies cited find that the average same-sex female union lasted an average of only 4.9 years, same-sex male couples 6.9 years, and the average heterosexual couple 20 years.
The United States Supreme Court has addressed the proposition that one man and one woman are the optimal setting for raising a family. The relationship between behavioral problems and the absence of fathers in the home have been addressed by other courts. [internal citations and footnotes omitted]
On a better note, the dissenting opinions were great. I'd like to single out former Justice Bobbe Bridge's opinion. She concurred, along with Justices Susan Owens and Tom Chambers in Justice Mary Fairhurst's dissent. But she also wrote her own concurrence in the dissent. It was simply beautiful, and it brought tears to my eyes as I read it. She is a good friend of some of the people with whom I work, but I have yet to tell her how much her opinion meant to me. Some excerpts:
The impact of this case upon the plaintiff couples and their children is both far reaching and deeply saddening. The impact extends to all of Washington's gay and lesbian citizens and to the many fair-minded Washington citizens who hoped for a different result in this case. And, I dare say, the result that we reach today will be remembered more for what it does not do than for what it does.
. . .
I agree with Justice Fairhurst that the DOMA wholly fails a rational basis review. And, I agree that our nation's jurisprudence suggests we should hold that where a union is not prohibited by age or bloodlines (restrictions grounded in legitimate state interests in the protection of minors and preventing congenital birth defects), it is a fundamental right of an individual to marry the person of his or her choice. Justice Fairhurst also correctly notes that the plurality and concurrences disingenuously frame the question before us. Dissent (Fairhurst, J.) at 1013. They ask not whether the right to marry is fundamental, or whether a prohibition on same-sex marriage strengthens the putative state interest in the frequency and longevity of heterosexual marriage (a dubious policy clearly at odds with our liberalized laws of marital dissolution), but whether there is a fundamental right to "same-sex" marriage. Just as the United States Supreme Court majority did in Bowers v. Hardwick 20 years ago, today's plurality and Justice J.M. Johnson's concurrence frame the issue before us so as to ignore not only petitioners' fundamental right to privacy but also the legislature's blatant animosity toward gays and lesbians. See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting). The passage of time and prudent judgment revealed the folly of Bowers, a mistake born of bigotry and flawed legal reasoning. Lawrence v. Texas, 539 U.S. 558, 562-78, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Alas, the same will be said of this court's decision today.
. . .
While Justice Fairhurst's dissent concludes that there is no rational relationship between the purposes behind the DOMA and the legislation itself, a conclusion with which I agree, I want to here express discomfort with the lack of legitimate state interest supporting the DOMA. Whatever bases the plurality and Justice J.M. Johnson's concurrence assert to support the DOMA, the legislative history of the law reveals that it stems, in substantial part, from thinly-veiled animosity against a minority group, animosity that is rooted in moral and religious objections to same-sex relationships. Its very title asserts as much-"defense" of marriage-"defense" from what? Against whom? The DOMA ought to be recognized for the discriminatory enactment that it is, and rejected as such.
To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA.
. . .
Yet the DOMA's legislative history reveals that what the proponents of the legislation intended was to impose religious and moral restrictions on the state regulated civil institution of marriage.FN9 In addition, there is ample evidence in the legislative history that the DOMA's supporters were motivated by animus, an undisguised desire to discriminate against gays and lesbians. Each of these purposes has been rejected by the United States Supreme Court as illegitimate interests that cannot support legislation targeting a minority group.
Included in the legislative history materials of Washington's DOMA is a transcript of Senator Byrd's testimony to the United States Senate in favor of the federal DOMA. In that argument, Senator Byrd spoke of Judeo Christian tradition, quoted several Bible verses, and predicted that acceptance of families with two mothers or two fathers would be catastrophic for society. Tr. of Senator Byrd's Remarks at 5-6, 10-11. The Washington director of Concerned Women for America called on our legislators to remember that marriage is a "God-ordained institution." Test. of Anne Ball at 1 (quoting biblical passages). She also claimed that legally sanctioning same-sex marriage "does not mean we will be 'slouching toward Gomorrah.' Instead, we will be in an all-out sprint." Id. Offering another biblical reference, a different proponent of the DOMA argued that only heterosexual marriages are sanctified by God. Test. of Leilani Lutak at 2.
During floor debate, Representative Mulliken opined that homosexuality is "against the Creator's design," and that homosexuality is "contrary to God's will." House Floor Debate (Feb. 4, 1998), audio recording by TVW, Washington State's Public Affairs Network, available at http:// www.tvw.org. Other representatives and senators explained that the DOMA's ban on same-sex marriage codified their view of God's intentions. Lynda V. Mapes, House Passes Ban on Gay Marriages-Backers Say Bill Defends "God's Choice," SEATTLE TIMES, Feb. 5, 1998. Several other representatives referred to the religious debate surrounding the bill. (Murray, Dickerson, Mulliken, Appelwick). Representatives Dickerson and Murray lamented the religious intolerance reflected in the legislation. House Floor Debate, supra.FN10
. . .
There exists manifold evidence of overt animosity in the legislative history of the DOMA. During floor debate, Representative Murray noted that the prime sponsor of the DOMA advocated that homosexuals be removed from American society and suggested that homosexuals can and should be "reprogrammed." House Floor Debate, supra. A written statement in support of the DOMA argued that marriage should not be "diluted" by extension to same-sex couples and suggested that homosexual marriages could not contribute to society in the same way that opposite-sex marriages do. Statement of Professor Lynn D. Wardle at 3-4. Another proponent of the DOMA characterized homosexual people as inherently more promiscuous than heterosexual people and "broken." Test. of Leilani Lutak at 1-2. Another explained that in her view, good parenting and homosexuality are mutually exclusive. Test. of Suzanne Cook at 2.
Other members, during floor debate in both houses and testimony in committee, decried the discriminatory intent and intolerance motivating the legislation. Representative Appelwick and Senators Thibaudeau, Fine, Kohl, and McAuliffe condemned the hostility underlying the bill. House Floor Debate, supra; Senate Floor Debate (Feb. 6, 1998), audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org; FINAL BILL REPORT, ESHB 1130, supra, at 4 ("The bill represents the use of people's hate and fear to try and destroy families that are loving, caring, nurturing, and ordinary in every other way."); SENATE BILL REPORT, ESSB 5398, supra, at 1. The League of Women Voters noted that the legislation singled out gay and lesbian couples, unfairly equating them with "criminal bigamists and those committing incest." Letter from League of Women Voters of Washington at 1 (Feb. 4, 1997).
Like Justice Fairhurst, I also take issue with the notion that children thrive better in opposite-sex households than in same-sex households. It is important to note that some of the studies about the negative effects of fatherlessness or motherlessness contained in the record might more accurately measure the growth and development of children raised in single-parent homes, not in *114 homes headed by two parents of the same sex. Concurrence (J.M. Johnson, J.) at 1005 n.42 (citing Clerk's Papers (CP) at 372). Or, the results of some studies might be skewed by the specter of an acrimonious divorce between two heterosexual parents.
. . .
The DOMA denies fundamental basic human rights to Washington's gay and lesbian citizens, human rights that impact the very core of their everyday lives. The plaintiffs in this case represent the ever-growing diversity of the openly gay community in Washington. They are teachers, attorneys, ministers, and foster parents. In their everyday lives they are bosses, coworkers, neighbors, clients, parents, friends, and volunteers. It is in these seemingly mundane, everyday roles that the discrimination imposed by the DOMA is deeply felt, but it is nowhere more wounding than in their very homes. Unless the concept of equal rights has meaning there, it has little meaning anywhere.
"Those who cannot remember the past are condemned to repeat it." GEORGE SANTAYANA, THE LIFE OF REASON OR THE PHASES OF HUMAN PROGRESS: REASON IN COMMON SENSE 82 (1953). Future generations of justices on this court and future generations of Washingtonians will undoubtedly look back on our holding today with regret and even shame, in the same way that our nation now looks with shame upon our past acts of discrimination. I will look forward to the time when state-sanctioned discrimination toward our gay and lesbian citizens is erased from our state's law books, if not its history. I dissent.
The following is a photo of Barbara Steele and Beth Reis, two of the plaintiffs in these consolidated cases, along with their daughter and their granddaughter.
(AP Photo/Elaine Thompson) Photo: / Associated Press / SL
I always hoped that after their disappointment with our Supreme Court, they were able to find comfort in Justice Bridge's opinion.
And I sincerely hope Maria Cantwell's stance here will help move marriage equality forward in Washington. It's long past due to correct the Supreme Court's 2006 error.