Reaction To WA State Marriage Ruling: A Dream Deferred

In a decision the New York Times called "angrily divided" and the Los Angeles Times described as a "major setback" the Washington State Supreme Court ultimately ruled 5-4 that their state's Defense of Marriage Act was constitutional and declared that there was no "fundamental right to same-sex marriage." As Professor William Rubinstein of the UCLA Law School's Williams Institute noted, "[T]he court is almost evenly and very bitterly divided." There was a plurality opinion joined by three judges, which the two most conservative judges joined in the judgment but wrote their own concurrent opinion which directly contradicted some of the statements made in the controlling opinion! But 3 votes plus 2 votes is 5 votes and that's how marriage equality opponents reached majority support on the Washington State Supreme Court.

It's really quite nauseating how similar the language of the majority opinion in Anderson is to the now-discredited majority opinion in Bowers vs Hardwick. The Anderson opinion frames the question at hand of whether there is a "fundamental right to same-sex marriage" when really the question is whether everyone has the right to marry the person of their choice, regardless of their sex. This is identical to the rhetorical shift made by Justice Byron White as he sneered there was no "right to homosexual sodomy" when really the question at hand was whether there was a right for an adult to have consensual sex with the person of their choice, regardless of their sex.

Both decisions were very closely decided (Justice Powell later revealed--to a closed gay law clerk!-- that he had initially intended to vote to strike down Georgia's sodomy law but declined to do so because he claimed that since he didn't know anyone gay, it really wasn't a very important case) and had (and will have) dramatic impact on the rights of gays and lesbians. It took seventeen years before the error in judgment was overturned by 2003's Lawrence vs Texas. How long will we have to wait to get past the shadow of Hernandez vs Robles (New York marriage case) and Anderson vs Sims?