|
|
E-mail the Executive Board at: lambdaexecboard[at]listserv[dot]bc[dot]edu |
|
|
- American Civil Liberties Union - Association of American Law Schools - Boston Queer Asian Pacific Alliance - Community United Against Violence - Fenway Community Health Center - Gay & Lesbian Advocates & Defenders - Gender Public Advocacy Coalition - International Association of Lesbian & Gay Judges - International Gay & Lesbian Human Rights Comm. - International Lesbian & Gay Association - Lambda Legal Defense & Education Fund - Massachusetts Chapter of Gender Education &
Advocacy - Massachusetts Lesbian & Gay Bar Association - National Center for Lesbian Rights - National Gay & Lesbian Task Force - National Latina/o LGBT Organization |
John
F. SINGER et al., Appellants, v. Lloyd HARA, Respondent COURT
OF APPEALS OF 522 P.2d 1187 Decided:
[Swanson, C.J. in which
Horowitz and James, JJ., concur]
Appellants Singer and Barwick, both males, appeal from the trial
court's order denying their motion to show cause by which they sought to
compel King County Auditor Lloyd Hara to issue a marriage license to
them. According to the parties' agreed
statement of facts, appellants applied for a marriage license on Appellants argue three
basic assignments of error, namely, (1) the trial court erred in concluding
that the Washington marriage statutes, RCW 26.04.010 et seq.,
prohibit same-sex marriages; (2) the trial court's order violates the Equal
Rights Amendment (ERA) to the Washington State Constitution, Const. art. 31,
§ 1; and (3) the trial court's order
violates the eighth, ninth and fourteenth amendments to the United States
Constitution. n1 n1
Appellants also list as an "assignment of error" the assertion that
the trial court's order "was based on the erroneous and fallacious
conclusion that same-sex marriages are destructive to society." In
support of this assertion, appellants devote nearly 40 pages of their brief
to what they characterize as a discussion of "the concept of
homosexuality and same-sex marriages through the eyes of other important
disciplines -- that of the sociologists, theologians, scientists, and
doctors." Appellants state that "a basic understanding of
homosexuals and society is a precondition to an enlightened discussion of the
legal grounds raised . . ." Although we do not quarrel with that proposition,
we deem it appropriate to observe that appellants' discussion in that regard
does not present a legal argument, nor is there any evidence in the record to
suggest that the trial court in fact based its order on the "erroneous
and fallacious conclusion" to which appellants take exception. Therefore, while we recognize that
appellants have presented a valuable context for the discussion of their
legal points, we have endeavored to confine this opinion to discussion of the
legal issues presented without attempting to present our views on matters of
sociology, theology, science and medicine. Directing our attention to
appellants' first assignment of error, it is apparent from a plain reading of
our marriage statutes that the legislature has not authorized same-sex
marriages. Appellants argue that RCW 26.04.010 n2 which authorizes
marriages by "persons of the age of eighteen years, who are otherwise
capable" includes no requirement that marriage partners be limited to
one male and one female and that the phrase "who are otherwise
capable" refers to the prohibitions of RCW 26.04.020-.040 against
certain marriages involving persons who are habitual criminals, diseased,
insane, etc., but there is no prohibition against same-sex marriages.
Appellants argue that the legislature has not defined the competency of
marriage but only the competency of individuals seeking to marry; inasmuch as
the appellants are both legally "capable" of marriage, they argue
state law permits them to marry each other.
As the state points out, however, the statutory language of RCW
26.04.010 relied upon by the appellants merely reflects a 1970 amendment
which substituted the word "persons" for the prior references to
"males" and "females" to implement the legislature's
elimination of differing age requirements for marriage by the respective
sexes. Further, RCW 26.04.210, relating to the affidavits required for
the issuance of a marriage license, makes reference to "the male"
and "the female" which clearly dispels any suggestion that the
legislature intended to authorize same-sex marriages. n3 The trial court
correctly concluded that the applicable marriage statutes do not permit
same-sex marriage. n2
At the time appellants applied for a marriage license, RCW 26.04.010,
as amended in 1970, provided as follows: "Marriage
is a civil contract which may be entered into by persons of the age of
eighteen years, who are otherwise capable: Provided, That every
marriage entered into in which either party shall not have attained the age
of seventeen years shall be void except where this section has been waived by
a superior court judge of the county in which the female resides on a showing
of necessity." n3
Similarly, in the 1970 version of RCW 26.04.010 which was the statute
in effect when appellants applied for their license, the proviso made
reference to "the female," thus implying that a male was
contemplated as the other marriage partner; if same-sex marriages had been
contemplated, the legislature probably would have used the plural and referred
to "females." The 1973 amendment to the proviso merely eliminated
the provision that the statutory age requirement could only be waived by a
superior court judge of the county in which the female resides and provided
that such a waiver could be granted by a superior court judge of a county in
which either party resides. It
is also noteworthy that the 1972 amendments to our state community property
laws (RCW 26.16), by which the legislature sought to establish sexual
equality in the management of community property, retain references to
"husband" and "wife." Again, it is apparent that the
legislature did not contemplate that sexual equality included provision for
same-sex marriage. Appellants next argue that
if, as we have held, our state marriage laws must be construed to prohibit
same-sex marriages, such laws are unconstitutional when so applied. In this context, we consider appellants'
second assignment of error which is directed to the proposition that the state
prohibition of same-sex marriages violates the ERA which recently became part
of our state constitution. n4 The question thus presented is a matter of
first impression in this state and, to our knowledge, no court in the nation
has ruled upon the legality of same-sex marriage in light of an equal rights
amendment. The ERA provides, in relevant part: Equality of rights and
responsibility under the law shall not be denied or abridged on account of
sex. n4
HJR 61, commonly known as the "equal rights amendment," was
approved by the voters November 7, 1972, and became effective December 7,
1972. Constitutional amendment 61,
adding article 31. The language of the
ERA is substantially similar to federal ERA now before the states for
ratification as the twenty-seventh amendment to the United States
Constitution. In seeking the protection
of the ERA, appellants argue that the language of the amendment itself leaves
no question of interpretation and that
the essential thrust of the ERA is to make sex an impermissible legal classification.
Therefore, they argue, to construe state law to permit a man to marry a woman
but at the same time to deny him the right to marry another man is to
construct an unconstitutional classification "on account of sex."
n5 In response to appellants'
contention, the state points out that all same-sex marriages are deemed
illegal by the state, and therefore argues that there is no violation of the
ERA so long as marriage licenses are denied equally to both male and female
pairs. In other words, the state
suggests that appellants are not entitled to relief under the ERA because
they have failed to make a showing that they are somehow being treated
differently by the state than they would be if they were females. Appellants
suggest, however, that the holdings in Loving v. Virginia, 388 U.S. 1, 9,
18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Perez v. Lippold, 32 Cal. 2d
711, 198 P.2d 17 (1948); and J.S.K. Enterprises, Inc. v. Lacey,
6 Wn. App. 43, 492 P.2d 600 (1971), are contrary to the position taken by
the state. We disagree. n5
Appellants also argue that prior to the November 7, 1972, election, the
voters were advised that one effect of approval of the ERA (HJR 61) would be
the legalization of same-sex marriages, but nevertheless voted in favor of
the amendment. In this connection,
appellants direct our attention to the following language in the
"Statement against" HJR 61 contained in the 1972 Voters Pamphlet
published by the Secretary of State: HJR
61 would establish rules in our society which were not intended and which the
citizenry simply could not support.
Examples are numerous: . .
. (3)
Homosexual and lesbian marriage would be legalized, with further complication
regarding adopting children into such a "family". People will live as they choose, but the beauty
and sanctity of marriage must be preserved from such needless desecration; We
are not persuaded that voter approval of the ERA necessarily included an
intention to permit same-sex marriages. On the contrary, the "Statement
for" HJR 61 in the Voters Pamphlet indicated that the basic principle of
the ERA is that both sexes be treated equally under the law. The State could not pass or enforce any law
which places a legal obligation, or confers a special legal privilege on one
sex but not the other. Similarly,
the Attorney General's explanation of the effect of HJR 61, also set forth in
the Voters Pamphlet, focused on the idea that government "could not
treat persons differently because they are of one sex or the other." In
other words, as we discuss in the body of this opinion, to be entitled to
relief under the ERA, appellants must make a showing that they are somehow
being treated differently by the government than they would be if they were
females. Newspaper
accounts published at the time of the November 7, 1972, election also tend to
discount appellants' suggestion that the voters intended to approve same-sex
marriage when they supported the ERA and make it apparent that proponents of
the ERA were quick to point out their disagreement with opponents'
speculation about the impact of the ERA and specifically with the
"Statement against" in the Voters Pamphlet. Thus, for example, in an "Election
Preview" supplement to the Seattle Post-Intelligencer, November 5, 1972,
the following statement appears in an article describing HJR 61 at page 10: Opponents
argue that passage [of HJR 61] would legalize homosexual marriage, deny
preferential treatment to women in divorce settlements, make women eligible
for Army combat duty, allow coed sports wrestling in schools, and eliminate
preferential auto, health and life insurance rates for women. Proponents
describe the foes' contentions as emotional, irresponsible fantasies,
misleading, deceptive and incorrect.
HJR 61 would have none of the affects [sic] listed above, they
say. Similarly,
in the Seattle Post-Intelligencer, October 30, 1972, the following statement
appears on page A-4: On
home and social fronts, opponents [of HJR 61] fear the "beauty and
sanctity of marriage" would be destroyed. But proponents say the amendment will have
no effect on private life, being concerned only with what happens under the
law. They
say the bill [HJR 61] would benefit both sexes and that it will have no
effect on such things as homosexual marriage since laws against men or women
marrying each other are not discriminating on the basis of sex. A
post-election survey of voter attitude toward HJR 61 reported in the Seattle
Times, November 27, 1972, provides further evidence that public conception of
HJR 61 involved its effect upon the rights of women in comparison with the
rights of men and did not include any notion that HJR 61 would have an impact
upon the interaction of members of the same sex. The following statement
appears in the article at page A-20: Among
those with negative attitudes toward HJR 61, men outnumbered women by almost
2 to 1. Among
those with positive attitudes, there were five per cent more women than men. The
idea of the "woman as homemaker" was not a large factor among those
who opposed the amendment. Most
persons with negative attitudes said they took that view because they wanted
to retain female legal advantages and expressed fear these would be abolished
if the amendment became law. Most
of those holding positive views toward sex equality and responsibility did so
on economic grounds, feeling that equal pay should be given for equal work. In Loving, the state
of Virginia argued that its antimiscegenation statutes did not violate
constitutional prohibitions against racial classifications because the
statutes affected both racial groups equally.
The Supreme Court, noting that "the fact of equal application
does not immunize the statute from the very heavy burden of justification
which the Fourteenth Amendment has traditionally required of state statutes
drawn according to race," held that the Virginia laws were founded on an
impermissible racial classification and therefore could not be used to deny
interracial couples the "fundamental" right to marry. The
California court made a similar ruling as to that state's antimiscegenation
law in Perez. Although appellants suggest
an analogy between the racial classification involved in Loving and Perez
and the alleged sexual classification involved in the case at bar, we do not
find such an analogy. The operative distinction lies in the relationship
which is described by the term "marriage" itself, and that
relationship is the legal union of one man and one woman. Washington
statutes, specifically those relating to marriage (RCW 26.04) and marital
(community) property (RCW 26.16), are
clearly founded upon the presumption that marriage, as a legal relationship,
may exist only between one man and one woman who are otherwise qualified to
enter that relationship. n6 Similarly although it appears that the appellate
courts of this state until now have not been required to define specifically
what constitutes a marriage, it is apparent from a review of cases dealing
with legal questions arising out of the marital relationship that the
definition of marriage as the legal union of one man and one woman who are
otherwise qualified to enter into the relationship not only is clearly
implied from such cases, but also was deemed by the court in each case to be
so obvious as not to require recitation.
See, e.g., In re Estate of Grauel, 70 Wn.2d 870, 425 P.2d 644
(1967); Davis v. Davis, 3 Wn.2d 448, 101 P.2d 313 (1940); Weatherall
v. Weetherall, 56 Wash. 344, 105 P. 822 (1909). n7 Finally, the courts
known by us to have considered the question have all concluded that same-sex
relationships are outside of the proper definition of marriage. Jones v.
Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 291
Minn. 310, 191 N.W.2d 185 (1971); Anonymous v. Anonymous, 67 Misc. 2d
982, 325 N.Y.S.2d 499 (Sup. Ct. 1971). Appellants have cited no authority
to the contrary. n6
In this regard, we are aided by the rule of statutory construction that words
of a statute must be understood in their usual and ordinary sense in the
absence of a statutory definition to the contrary. Rena-Ware Distribs., Inc. v. State, 77
Wn.2d 514, 463 P.2d 622 (1970); Cramer v. Van Parys, 7 Wn. App. 584,
500 P.2d 1255 (1972); In re Kent, 1 Wn. App. 737, 463 P.2d 661 (1969).
We need not resort to the quotation of dictionary definitions to establish
that "marriage" in the usual and ordinary sense refers to the legal
union of one man and one woman. n7
Of course, many other cases could be cited and, in the context of the
definition of marriage, it is significant that courts considering questions
involving that legal relationship frequently utilize gender-related terms
such as "husband" and "wife." For example, in divorce
cases, which may be characterized as cases involving the dissolution of
marriage, a commonly cited rule is that the amount of alimony to be awarded,
if any, "depends upon the needs of the wife and the ability of the
husband to pay . . ." Thompson v. Thompson, 82 Wn.2d 352, 357, 510
P.2d 827 (1973); Stacy v. Stacy, 68 Wn.2d 573, 414 P.2d 791 (1966).
Although, in appropriate circumstances, alimony may be awarded to "the
husband" rather than to "the wife," it is clear that all
marriages have one "husband" and one "wife." In the
relationship proposed by appellants, there is no "wife" and
therefore there can be no marriage. Given the definition of
marriage which we have enunciated, the distinction between the case presented
by appellants and those presented in Loving and Perez is
apparent. In Loving and Perez,
the parties were barred from entering into the marriage relationship because
of an impermissible racial classification. There is no analogous sexual
classification involved in the instant case because appellants are not being
denied entry into the marriage relationship because of their sex; rather,
they are being denied entry into the marriage relationship because of the
recognized definition of that relationship as one which may be entered into
only by two persons who are members of the opposite sex. n8 As the court
observed in Jones v. Hallahan, supra at 590: "In substance, the relationship
proposed by the appellants does not authorize the issuance of a marriage
license because what they propose is not a marriage." Loving and Perez
are inapposite. n8
Appellants argue that Loving and Perez are analogous to the case
at bar notwithstanding what might be the "definition" of marriage.
They argue that at the time Loving and Perez were decided,
marriage by definition barred interracial marriages and that the Loving
and Perez courts changed that definition through their interpretation
of the Fourteenth Amendment. Appellants suggest that the ERA operates in a
manner analogous to the Fourteenth Amendment to require us to change the
definition of marriage to include same-sex marriages. We disagree. The Loving and Perez courts
did not change the basic definition of marriage as the legal union of one man
and one woman; rather, they merely held that the race of the man or woman
desiring to enter that relationship could not be considered by the state in
granting a marriage license. In other words, contrary to appellants'
contention, the Fourteenth Amendment did not require any change in the
definition of marriage and, as we hold today, neither does the ERA. To
further illustrate our view, we suggest two examples of a situation which,
contrary to the situation presented in the case at bar, would raise questions
of possible sexual discrimination prohibited by the ERA. First, if the antimiscegenation statutes
involved in Loving and Perez had permitted white males to marry
black females but prohibited white females from marrying black males, then it
is arguable that the statutes would be invalid not only because of an
impermissible racial classification under the Fourteenth Amendment but also
because of an impermissible sexual classification under the ERA. Second, if the state legislature were to
change the definition of marriage to include the legal union of members of
the same sex but also provide that marriage licenses and the accompanying
protections of the marriage laws could only be extended to male couples, then
it is likely that the state marriage laws would be in conflict with the ERA
for failure to provide equal benefits to female couples. J.S.K. Enterprises, Inc. v.
Lacey, supra, is also factually and legally dissimilar to
the case at bar. In that case, this
court held that a city ordinance which permitted massagists to administer
massages only to customers of their own sex constituted discrimination on the
basis of sex, prohibited by the equal protection clause of the fourteenth
amendment to the United States Constitution, and also violated RCW
49.12.200, relating to the right of women to pursue any employment. We see no analogy between the right of
women to administer massages to men and the question of whether the prohibition
against same-sex marriages is unconstitutional. The right recognized in J.S.K.
Enterprises, Inc., on the basis of principles applicable to employment
discrimination has nothing to do with the question presented by appellants. Appellants apparently
argue, however, that notwithstanding the fact that the equal protection
analysis applied in Loving, Perez and J.S.K. Enterprises, Inc.,
may render those cases distinguishable from the case at bar, the absolute
language of the ERA requires the conclusion that the prohibition against
same-sex marriages is unconstitutional.
In this context, appellants suggest that definition of marriage, as
the legal union of one man and one woman, in and of itself, when applied to appellants,
constitutes a violation of the ERA.
Therefore, appellants contend, persons of the same sex must be
presumed to have the constitutional right to marry one another in the absence
of a countervailing interest or clear exception to the ERA. Appellants cite no case law
in support of their position, but direct our attention to the analysis set
forth in Note, The Legality of Homosexual Marriage, 82 Yale L.J.
573 (1973), and in Brown, Emerson, Falk & Freeman, The Equal
Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80
Yale L.J. 871 (1971). The latter article, however, is clearly written in
the context of the impact of the ERA upon the rights of women and men as
individuals and the authors make no suggestion that the ERA requires a change
in the definition of marriage to include same-sex relationships. n9 The
authors suggest that the ERA prohibition of sex discrimination is
"absolute," meaning that one person may not be favored over another
where sex is the only distinguishing factor between the two. In that context, the authors state at page
892: From
this analysis it follows that the constitutional mandate must be
absolute. The issue under the Equal
Rights Amendment cannot be different but equal, reasonable or unreasonable classification,
suspect classification, fundamental interest, or the demands of
administrative expediency. Equality of
rights means that sex is not a factor.
This at least is the premise of the Equal Rights Amendment. n9
The authors describe the basic principle of the ERA in part as follows, at
page 889: "The basic principle of the Equal Rights Amendment is that sex
is not a permissible factor in determining the legal rights of women, or of
men. This means that the treatment of
any person by the law may not be based upon the circumstance that such person
is of one sex or the other. The law
does, of course, impose different benefits or different burdens upon
different members of the society. That
differentiation in treatment may rest upon particular characteristics or
traits of the persons affected, such as strength, intelligence, and the
like. But under the Equal Rights
Amendment the existence of such a characteristic or trait to a greater degree
in one sex does not justify classification by sex rather than by the
particular characteristic or trait.
Likewise the law may make different rules for some people than for
others on the basis of the activity they are engaged in or the function they
perform. But the fact that in our
present society members of one sex are more likely to be found in a
particular activity or to perform a particular function does not allow the
law to fix legal rights by virtue of membership in that sex. In short, sex is
a prohibited classification." The author of the note, The
Legality of Homosexual Marriage, supra, applies the aforementioned
analysis of the ERA in the totally different context of same-sex
relationships and thus concludes that the ERA requires that such
relationships be accommodated by state marriage laws. We are not persuaded by such
reasoning. We do not believe that
approval of the ERA by the people of this state reflects any intention upon
their part to offer couples involved in same-sex relationships the protection
of our marriage laws. A consideration
of the basic purpose of the ERA makes it apparent why that amendment does not
support appellants' claim of discrimination.
The primary purpose of the ERA is to overcome discriminatory legal
treatment as between men and women "on account of sex." The popular
slogan, "Equal pay for equal work," particularly expresses the
rejection of the notion that merely because a person is a woman, rather than
a man, she is to be treated differently than a man with qualifications equal
to her own. Prior to adoption of the
ERA, the proposition that women were to be accorded a position in the law
inferior to that of men had a long history. n10 Thus, in that context, the
purpose of the ERA is to provide the legal protection, as between men and
women, that apparently is missing from the state and federal Bills of Rights,
and it is in light of that purpose that the language of the ERA must be
construed. To accept the appellants'
contention that the ERA must be interpreted to prohibit statutes which refuse
to permit same-sex marriages would be to subvert the purpose for which the
ERA was enacted by expanding its scope beyond that which was undoubtedly
intended by the majority of the citizens of this state who voted for the
amendment. n10
For example, Mr. Justice Bradley, in his concurring opinion upholding the
refusal of a state court to license a woman to practice law in Bradwell v.
Illinois, 83 U.S. (16 Wall.) 130, 21 L. Ed. 442 (1872), stated in part at
page 141: [T]he
civil law, as well as nature herself, has always recognized a wide difference
in the respective spheres and destinies of man and woman. Man is, or should
be, woman's protector and defender.
The natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil
life. The constitution of the family
organization, which is founded in the divine ordinance, as well as in the
nature of things, indicates the domestic sphere as that which properly
belongs to the domain and functions of womanhood. The harmony, not to say identity, of
interests and views which belong, or should belong, to the family institution
is repugnant to the idea of a woman adopting a distinct and independent
career from that of her husband. . . .
The paramount destiny and mission of woman are to fulfil the noble and benign
offices of wife and mother. This is
the law of the Creator. We are of the opinion that
a commonsense reading of the language of the ERA indicates that an individual
is afforded no protection under the ERA unless he or she first demonstrates
that a right or responsibility has been denied solely because of that
individual's sex. Appellants are unable to make such a showing because the
right or responsibility they seek does not exist. The ERA does not create any new rights or
responsibilities, such as the conceivable right of persons of the same sex to
marry one another; rather, it merely insures that existing rights and
responsibilities, or such rights and responsibilities as may be created in
the future, which previously might have been wholly or partially denied to
one sex or to the other, will be equally available to members of either sex.
The form of discrimination or difference in legal treatment which comes
within the prohibition of the ERA necessarily is of an invidious character
because it is discrimination based upon the fortuitous circumstance of one's
membership in a particular sex per se.
This is not to say, however, that the ERA prohibits all legal
differentiations which might be made among males and females. A generally
recognized "corollary" or exception to even an "absolute"
interpretation of the ERA is the proposition that laws which differentiate
between the sexes are permissible so long as they are based upon the unique
physical characteristics of a particular sex, rather than upon a person's
membership in a particular sex per se.
See Brown, Emerson, Falk & Freedman, The Equal Rights
Amendment: A Constitutional Basis for Equal Rights for Women, supra at
893-96. In the instant case, it is
apparent that the state's refusal to grant a license allowing the appellants
to marry one another is not based upon appellants' status as males, but
rather it is based upon the state's recognition that our society as a whole
views marriage as the appropriate and desirable forum for procreation and the
rearing of children. This is true even
though married couples are not required to become parents and even though
some couples are incapable of becoming parents and even though not all couples
who produce children are married.
These, however, are exceptional situations. The fact remains that marriage exists as a
protected legal institution primarily because of societal values associated
with the propagation of the human race.
Further, it is apparent that no same-sex couple offers the possibility
of the birth of children by their union.
Thus the refusal of the state to authorize same-sex marriages results
from such impossibility of reproduction rather than from an invidious
discrimination "on account of sex." Therefore, the definition of
marriage as the legal union of one man and one woman is permissible as
applied to appellants, notwithstanding the prohibition contained in the ERA,
because it is founded upon the unique physical characteristics of the sexes
and appellants are not being discriminated against because of their status as
males per se. In short, we hold the
ERA does not require the state to authorize same-sex marriage. Appellants' final
assignment of error is based primarily upon the proposition that the state's failure
to grant them a marriage license violates the equal protection clause of the
fourteenth amendment to the United States Constitution. n11 The threshold
question presented involves the standard by which to measure appellants'
constitutional argument. We have held
that the effect [***22] of our state
marriage statutes is to prohibit same-sex marriages, and as a general
proposition such statutes must be presumed constitutional. See Aetna Life Ins. Co. v. Washington
Life & Disability Ins. Guar. Ass'n, 83 Wn.2d 523, 520 P.2d 162 (1974).
The operative effect of such a presumption is that the statutory
classification in question -- the exclusion of same-sex relationships from
the definition of marriage -- does not offend the equal protection clause if
it rests upon some reasonable basis. Dandridge
v. Williams, 397 U.S. 471, 25 L. Ed.
2d 491, 90 S. Ct. 1153 (1970); Caughey v. Employment Sec. Dept, 81
Wn.2d 597, 503 P.2d 460 (1972). n11
Appellants also claim that their rights under the Eighth and Ninth Amendments,
and under the due process clause of the Fourteenth Amendment have been
violated. In view of the conclusion we
have reached with reference to appellants' claim under the equal protection
clause of the Fourteenth Amendment, we deem it unnecessary to discuss
appellants' contentions with regard to the right to privacy under the Ninth
Amendment and the right to due process under the Fourteenth Amendment.
Further, we have determined that appellants' argument that denial of a
marriage license to them constitutes cruel and unusual punishment prohibited
by the Eighth Amendment is without merit. Appellants contend,
however, that a standard stricter than such a "reasonable basis"
test must be applied to the operation of our state marriage laws. Appellants point out that a fundamental
right -- the right to marry -- is at stake in the instant litigation,
directing our attention to Loving v. Virginia, supra; Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110
(1942); and Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct.
625 (1923). Moreover, appellants, reasoning primarily by analogy from Loving
and related cases, argue that the statutory prohibition against same-sex
marriages constitutes a classification based upon sex. Therefore, appellants
urge that the applicable standard under the equal protection clause requires
that the classification be deemed "inherently suspect" and one
which may not be sustained unless the state demonstrates that a
"compelling state interest" so requires. See Sail'er Inn, Inc. v. Kirby, 5 Cal.
3d 1, 485 P.2d 529, 95 Cal. Rptr. 329 (1971). We do not take exception to
the proposition that the equal protection clause of the Fourteenth Amendment
requires strict judicial scrutiny of legislative attempts at sexual
discrimination. Our state Supreme
Court has held that a legislative classification based upon sex is inherently
suspect, Hanson v. Hutt, 83 Wn.2d 195, 517 P.2d 599 (1973), as has a
plurality of the United States Supreme Court, Frontiero v. Richardson, 411
U.S. 677, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973). As we have already
held in connection with our discussion of the ERA, however, appellants do not
present a case of sexual discrimination.
Appellants were not denied a marriage license because of their sex;
rather, they were denied a marriage license because of the nature of marriage
itself. Appellants appear to
recognize the distinction we make because they also argue that the definition
of marriage as it is reflected in our marriage statutes constitutes an
inherently suspect classification because it discriminates against
homosexuals as a group. In other
words, appellants appear to present the alternative argument that although
they are not being discriminated against because they are males, they are
being discriminated against because they happen to be homosexual. Although appellants present
argument to the contrary, n12 we agree with the state's contention that to define
marriage to exclude homosexual or any other same-sex relationships is not to
create an inherently suspect legislative classification requiring strict
judicial scrutiny to determine a compelling state interest. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d
185 (1971); see Jones v. Hallahan, supra; Anonymous v.
Anonymous, supra; see generally Note, The Legality of
Homosexual Marriage, supra at 574-83.
The state contends that the exclusion of same-sex relationships from
our marriage statutes may be upheld under the traditional "reasonable
basis" or "rational relationship" test to which we have
previously made reference. We agree.
n13 n12
Appellants argue, in part, that homosexuals constitute a class having
characteristics making any legislative classification applicable to them one
having common denominators of suspectability.
Thus, they argue homosexuals constitute "a politically voiceless
and invisible minority," see Hobson v. Hansen, 269 F. Supp. 401, 508
(D.D.C. 1967); that being homosexual, generally speaking, is an immutable
characteristic, see Korematsu v. United States, 323 U.S. 214, 89 L. Ed.
194, 65 S. Ct. 193 (1944); and that homosexuals are a group with a long
history of discrimination subject to myths and stereotypes. See generally Note, The Legality
of Homosexual Marriage, supra at 575-78. We
are not unmindful of the fact that public attitude toward homosexuals is
undergoing substantial, albeit gradual, change. See generally Comment, Homosexuality
and the Law -- A Right to be Different?, 38 Albany L. Rev. 84 (1973).
Notwithstanding these considerations, we express no opinion upon the
desirability of revising our marriage laws to accommodate homosexuals and
include same-sex relationships within the definition of marriage. That is a
question for the people to answer through the legislative process. We merely hold such a legislative change is
not constitutionally required. n13
Appellants suggest that there is an intermediate "balancing" test
applicable to equal protection analysis which allows no presumption in favor
of the interests of either the individual or the state. Such an intermediate test, which some
commentators have argued represents a merger of or departure from the
"two tier" analysis involved in the application of the "strict
scrutiny" and "rational basis" tests, may well be implied by
recent opinions of the United States Supreme Court. See, e.g., Frontiero v. Richardson,
supra; Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251
(1971); see generally Gunther, The Supreme Court -- 1971 Term
-- Forward: In Search of Evolving Doctrine on a Changing Court: a Model for
New Equal Protection, 86 Harv. L. Rev. 1 (1972); Comment, Constitutional
Law -- Equal Protection -- Fifth Amendment, Due Process -- Plurality of Court
Decides that Sex-Based Classifications Are "Suspect," Frontiero v.
Richardson, 5 Rutgers-Camden L.J. 348 (1974); Comment, Toward Sexual
Equality? An Analysis of Frontiero v.
Richardson, 59 Iowa L. Rev. 377 (1973); Note, The Legality of
Homosexual Marriage, supra at 574.
Whatever the merits of such academic analysis, it is our view that the
so-called traditional "rational relationship" test necessarily
involves a balancing of the nature of a particular legislative
classification, the interests of the individual affected by such
classification, and the interests of the state (presumption of
constitutionality) applicable to such legislative classification. Therefore,
we shall continue to refer to the alternative tests of "strict
scrutiny" and "rational basis" because there appears to be no
need to define an intermediate test. Hanson
v. Hutt, supra; Aetna Life Ins. Co. v. Washington Life &
Disability Ins. Guar. Ass'n, supra; Thurston v. Greco, 78 Wn.2d 424,
474 P.2d 881 (1970); State v. Persinger, 62 Wn.2d 362, 382 P.2d 497
(1963). There can be no doubt that
there exists a rational basis for the state to limit the definition of
marriage to exclude same-sex
relationships. Although, as appellants
contend, other cultures may have fostered differing definitions of marriage,
marriage in this state, as elsewhere in the nation, has been deemed a private
relationship of a man and a woman (husband and wife) which involves
"interests of basic importance in our society." See Boddie v.
Connecticut, 401 U.S. 371, 376, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971).
Accordingly, subject to constitutional limitations, the state has exclusive
dominion over the legal institution of marriage and the state alone has the
"prerogative of creating and overseeing this important institution."
Coleman v. Coleman, 32 Ohio St. 2d 155, 160, 291 N.E.2d 530 (1972). See
also O'Neill v. Dent, 364 F. Supp. 565 (E.D.N.Y. 1973). We do not seek to define in
detail the "interests of basic importance" which are served by
retaining the present definition of marriage as the legal union of one man
and one woman. The societal values which are involved in this area must be
left to the examination of the legislature.
See [*264] Moran v. School Dist. 7, 350 F. Supp. 1180
(D. Mont. 1972). For constitutional purposes, it is enough to recognize
that marriage as now defined is deeply rooted in our society. Although, as appellants hasten to point
out, married persons are not required to have children or even to engage in sexual
relations, marriage is so clearly related to the public interest in affording
a favorable environment for the growth of children that we are unable to say
that there is not a rational basis upon which the state may limit the
protection of its marriage laws to the legal union of one man and one woman.
Under such circumstances, although the legislature may change the definition
of marriage within constitutional limits, the constitution does not require
the change sought by appellants. As
the court observed in Baker v. Nelson, supra at 312-13: The
institution of marriage as a union of man and woman, uniquely involving the
procreation and rearing of children within a family, is as old as the book of
Genesis. . . . This historic
institution manifestly is more deeply founded than the asserted contemporary
concept of marriage and societal interests for which petitioners
contend. The due process clause of the
Fourteenth Amendment is not a charter for restructuring it by judicial
legislation. The equal protection clause
of the Fourteenth Amendment, like the due process clause, is not offended by
the state's classification of persons authorized to marry. Thus, for the reasons
stated in this opinion, we hold that the trial court correctly concluded that
the state's denial of a marriage license to appellants is required by our
state statutes and permitted by both the state and federal constitutions. The judgment is affirmed. |
|
