Centralia Chronicle: Editorial--Courts deferring to legislatures, voters on marriage issue

Centralia Chronicle, WA, October 11, 2006
Courts deferring to legislatures, voters on marriage issue

Courts in three politically liberal states - Washington, California
and New York - have now upheld legislative acts in those states that
ban same-sex marriage.

That is a reflection, at least in Washington and New York, of how
strong the public sentiment is nationally for preserving traditional
marriage. And it is an indication of the respect of courts and judges
in those states for the notion that policy should be made by the
people through the legislative process, not by judicial fiat.

In July, the Washington Supreme Court in a 5-4 ruling upheld the
state's Defense of Marriage Act, which defines marriage as a union
between a man and a woman. Despite great pressure from the very
sizable gay and lesbian community and its supporters in this state,
the court held fast in not usurping the will of the people as
expressed by the Legislature. It did not find or try to interpret a
new right in our Constitution for same-sex marriage.

A state appeals court in California last week upheld the state's ban
on same-sex marriage, in a major defeat for its advocates. The court
reversed the March 2005 ruling of a San Francisco trial judge that
threw out the ban on the basis it unconstitutionally discriminates
against gays and lesbians.

The appeals court, in its 2-1 ruling, said it us up to the
Legislature, not the courts, to decide the issue and that the ban does
not violate the state's Constitution.

'We conclude California's historical definition of marriage does not
deprive individuals of a vested fundamental right or discriminate
against a suspect class,' the court said. Any move to expand the
definition of marriage beyond a union between a man and a woman "must
come from democratic processes, not by judicial fiat," it ruled.

The court said further that the ban does not discriminate against gays
and lesbians because the state has a strong domestic partner law,
which gives registered couples most of the same rights as married
couples.

In California, however, the issue has not finally been decided because
same-sex marriage activists plan to appeal the lower court's decision
to the California Supreme Court. But if the high court rulings in this
state and New York recently that upheld state bans on same-sex
marriage are any indication, the California high court may well also
uphold that state's ban.

But that likely still won't end the issue in very liberal California,
whose Legislature last year became the first lawmaking body in the
nation to legalize same-sex marriage. Gov. Arnold Schwarzenegger
vetoed the bill, saying it was up to voters or the courts, not
lawmakers, to settle the issue.

Presumably, if the courts there ultimately defer to the Legislature,
California could become the first state to legislatively legalize
same-sex marriage.

STRONG TIDE: But the tide elsewhere in the country is strongly in the
other direction.

Nineteen states have passed constitutional amendments barring same-sex
marriage. Eleven states passed the constitutional bans in the 2004
election, in a growing popular defense of traditional marriage.
Besides Washington, 24 other states have passed statute laws banning
it, many of them in recent years.

It might be prudent for same-sex marriage opponents in this state to
seek a constitutional amendment to give protection to traditional
marriage beyond the Defense of Marriage Act. State courts cannot
nullify state constitutional amendments - only the U.S. Supreme Court,
ultimately, can do that.

In the three ultra-liberal states - Massachusetts, Hawaii and Vermont
- whose supreme courts have ruled in effect in favor of same-sex
marriage, those rulings were quickly followed by public backlashes
that have or may well lead to constitutional amendments or laws
banning such marriages.

As the laws and amendments indicate, the public opinion tide continues
to run overwhelmingly against allowing same-sex marriage. This
undoubtedly a factor in state courts' reluctance to wrongly attempt to
legislate from the bench.


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Seattle Times: Editorial--The defense of gay marriage act

Seattle Times, October 5, 2006
Editorial
The defense of gay marriage act

That our state's Defense of Marriage Act was upheld by the Washington Supreme Court is no reason to give up the fight for marriage equality. The defeat last summer for same-sex marriage was by one vote, and the ruling was mushy enough to encourage advocates to keep pushing.

The Seattle Times is among those advocates, mostly for down-to-Earth reasons: the promotion of family stability and the protection of spouses and children. These are the same practical reasons for marriage between a man and a woman. In our view, as soon as society legalized homosexuality and allowed adoption by same-sex couples, marriage became inevitable. Last summer's ruling did not settle the dispute. Only marriage will settle it.

At a forum of the Federalist Society on Monday, Dale Carpenter, professor of law at the University of Minnesota, said the main "No" opinion by state Supreme Court Justice Barbara Madsen is "pregnant with possibilities of same-sex marriage."

In essence, he said, in asking for full marriage, same-sex couples had asked for a little too much. They might win, however, if they took one of the ways the lack of a marriage law penalizes them and sue on that one thing. Take another one, and sue on that. By and by, the remaining edifice will come down.

The Federalists' forum had a lawyer from each side. It was notable that the defender of the Defense of Marriage Act, attorney Steven O'Ban, offered an argument that was procedural only. O'Ban raised no argument against gay couples; he merely said the Legislature, not the court, is the place to change the law.

Bradley Bagshaw, who had represented the couples, made the most substantive argument: How, he asked, could the state justify limiting an individual's choice of marriage partner on the basis of gender?

Years ago, one might have said the state could do that because same-gender sex was illegal, and that there were no same-sex couples, and certainly none with children.

All that is changed, and it is not going to change back. The law will have to accommodate it.

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Seattle P-I: Pedersen clings to slim lead; Gay candidate pursues his goal

Seattle P-I, September 21, 2006
Pedersen clings to slim lead
Gay candidate pursues his goal
By CHRIS McGANN, P-I CAPITOL CORRESPONDENT

Washington's gay community suffered one of its biggest setbacks on the road to equal rights this summer when the state Supreme Court upheld a ban on same-sex marriage.

For Jamie Pedersen, the decision was a huge blow personally -- he'd hoped to marry his longtime partner.

"It was deeply disappointing," he said.

And as the lead volunteer lawyer in the case for gay marriage brought before the high court, Pedersen said the decision also was one of the biggest defeats in his professional life. "I don't know if you've ever spent 10 years working on something, but yes, it was a blow professionally," he said.

But Tuesday's primary election showed how a candidate can leverage bitter defeat into a potential victory.

As King County tallies the ballots, Pedersen has maintained a slim lead and has a good chance of winning the hotly contested battle for Seattle's 43rd District House seat. Former Seattle City Councilman Jim Street is a close second, but he's been unable to overtake Pedersen thus far.

And Pedersen's lead increased when the latest results were posted Wednesday afternoon, though it could still be a few days until enough absentee ballots are counted to declare a winner.

Winning one of the 98 seats in the state House of Representatives might seem like small beans, but in the case of the 43rd District race this year the competition was remarkable.

Six serious candidates spent more than a half a million dollars in what turned out to be the most expensive House elections in state history. In the liberal 43rd, the winner of the primary is almost guaranteed a victory in November.

Pedersen raised by far the most money for his primary campaign, but he was up against candidates with local name recognition, national credentials and union support.

And before the court ruling, it seemed adequate -- even to some influential figures in the gay community -- that all the candidates were supportive of gay marriage. Pedersen's decade-long work with Lambda Legal on the national effort to legalize same-sex marriage came off as a distinction comparable to his Yale education.

An undercurrent of optimism about the upcoming ruling among liberals and gay people seemed to have defused some of the urgency that had surrounded the issue the previous summer.

But everything changed on that July morning when the court made its ruling.

Pedersen and others vowed to continue the fight but admitted it would likely be a years-long battle in the Legislature.

That did two things.

Political scientists said that anger about the decision, which maintained the status quo, could have mobilized the gay community more so than it would the general public.

It also prompted the current officeholder, Ed Murray, to endorse Pedersen. Murray, who is running for state Senate, for months had been saying he would not give a nod to any of the candidates, but changed his mind in light of the decision.

"If we had won in the courts ... there would not be a major gay or lesbian issue in front of the Legislature," Murray said at the time. "But that negative decision has created a political earthquake in the gay and lesbian community."

Pedersen said he always believed -- no matter how the Supreme Court ruled -- that the issue would take further work by the Legislature, and he wanted to be a part of that effort.

P-I reporter Chris McGann can be reached at 360-943-3990 or chrismcgann@seattlepi.com.

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Seattle Post-Intelligencer: Editorial--Marriage Law: Are you sure?

Seattle Post-Intelligencer, August 31, 2006
Marriage Law: Are you sure?
SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

Perhaps the last thing the justices of the Washington Supreme Court would like to do is revisit their divisive 5-4 ruling on the state's Defense of Marriage Act. But they should anyway.

It was certainly one of the court's more controversial cases, and one that could have profound implications for individual rights in Washington.

Advocates for the court's reconsideration of the case argue that the majority ruling was flawed. We're not equipped to make that legal judgment. But we will suggest that it is in the best interests of the state for the justices to ensure that this landmark decision, which overruled two Superior Court findings, has been thoroughly and conclusively examined.

For example, Washington's citizens might benefit from more clarity on how allowing same-gender marriages would undermine the state's interest in promoting procreation through marriage between mixed-gender couples.

The prospects of the high court reconsidering the case, let alone reversing its decision that the definition of marriage lies within the Legislature's purview, are slim at best. At least, we hope the court won't take another year and a half to make up its mind.

In any event, the onus remains with the Legislature, as it likely would have been even if the Supreme Court rejected DOMA. We encourage legislative leaders to propose some form of civil union that can honor both the institution of marriage and the civil rights of committed, loving same-gender partners.


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Mercer Island Reporter: Opinion--Court relinquishes duty in marriage decision

Mercer Island Reporter, August 25, 2006
Court relinquishes duty in marriage decision
Andrew Kohler

On July 26, the Washington State Supreme court abdicated its duty to protect the constitutional of rights of all citizens by upholding the Orwellian-named Defense of Marriage Act (DOMA), the state's 1998 ban on same-sex marriage.

The court noted that "[T]he Legislature was entitled to believe that [the DOMA] furthers the State's legitimate interests in procreation and the well-being of children.'' Writing for the court, Justice Barbara Madsen was quick to point out that the Legislature's reasoning was not at issue (be it discriminatory or not), and chided dissenting Justice Mary Fairhurst for "fail[ing] to give the Legislature the deference required under the constitution'' by daring to assess if its arguments actually were valid.

No one denies the value of married couples raising their biological children.

Many families today, however, do not fit that model, including blended families and families with adopted children. What message does this court ruling send to these families, or couples who do not have children by choice, to infertile couples, and those who marry beyond child-bearing age? This ruling is an affront not only to lesbian, gay, bisexual and transgender (LGBT) individuals, but to many heterosexuals as well.

When the U.S. Congress debated this issue in 1996, several representatives promised that society never could survive the legal recognition of same-sex unions. Thrice-married former Rep. Bob Barr, R-Georgia, authored the federal DOMA, which provides that if any state should recognize same-sex marriages neither any other state nor even the federal government must recognize them. He admonished his colleagues that "As Rome burned, Nero fiddled, and ... [t]he very foundations of our society are in danger of being burned.''

Former House majority leader Rep. Tom DeLay, R-Texas, was only somewhat less emphatic, referring to "attacks on the institution of marriage only [taking] us further down the road of social deterioration.'' These statements not only vilify LGBT individuals, they imply that heterosexual individuals are of such weak constitution that they cannot withstand the putative threat posed by a relatively small minority population.

These prognosticators of doom, however, fail to explain how the DOMA actually enables heterosexuals to provide a better environment for children. By preventing two other people from getting married to do precisely the same thing?

Lost in all the sententious rhetoric about child-rearing are the very real families of same-sex couples. The court's decision ignores amicus briefs submitted by social workers, children's rights advocates and psychologists in support of same-sex marriage. Those who believe that the DOMA's court victory is a triumph for our state's children should talk to these countless families, such as that of community leader Cantor David Serkin-Poole and his partner Michael, who have adopted three children with special needs. Because of the Serkin-Pooles, these children have had all the love and care that all children deserve but, sadly, do not always find.

Our community should be proud to be represented by state legislators who have worked to promote a society of inclusion, especially long-time public servant, Rep. Fred Jarrett, R-Mercer Island. While the court has been derelict in its duty, the Legislature now has the chance to right this wrong. When some citizens are deprived of equal protection under the law under the pretext of a greater good, no one is a winner.

Let us hope that Washington truly will defend the institution of marriage by valuing all its families.

Andrew Kohler has been an Island resident since he was three years old. He will begin his senior year at Yale University this fall.

Seattle Times: Job benefits for all couples?

Seattle Times, August 25, 2006
Job benefits for all couples?
By Lornet Turnbull, Seattle Times staff reporter

One of the first complaints under the state's new gay-rights law comes with a surprising twist: A former Honeywell employee is challenging employers' ability to provide domestic-partner benefits to same-sex couples but not unmarried straight partners.

In her claim, Sandi Scott-Moore, who worked in Honeywell's Redmond office, said the company violated the new law by denying health-insurance coverage for her male, live-in partner in July, although it provides such coverage for the partners of gay workers.

Scott-Moore's complaint — one of the first claims filed with the state Human Rights Commission (HRC) under the new law — could have broad implications for local governments and businesses. Washington has more than 600 employers offering some kind of domestic-partner benefit and 5 percent of the state's households are couples living together outside marriage.

"It's the law of unintended consequences," said Joe Marra, a Seattle employment attorney who is not involved with the case. "A lot of people will be watching this."

"And my prediction is if HRC doesn't take action and drops the case, it will end up in court. I don't think it's that hard a call: The law says you can't discriminate on the basis of sexual orientation."

The new law, which took effect in June, protects people based on their sexual orientation, whether heterosexual or homosexual. It does not directly address employment benefits.

Scott-Moore is no longer employed at Honeywell and could not be reached for comment.

Honeywell spokesman Robert Ferris said the company does provide benefits to same-sex domestic partners but declined to say whether those same benefits are denied to opposite-sex couples. A prominent gay-rights organization lists Honeywell among companies that provide benefits to married and same-sex couples but not unmarried heterosexual couples.

In the Puget Sound region, Boeing, Microsoft and The Seattle Times, among others, offer domestic partner benefits to same-sex and married opposite-sex couples only, while Starbucks provides coverage for both unmarried straight and gay couples.

Employers who exclude opposite-sex partners from their benefit plans usually justify their action by pointing out that straight couples, unlike gays, have the option of marriage.

Scott-Moore's complaint is one of four the commission is investigating under the new gay-rights law, said Marc Brenman, director of the commission. Others are expected.

Because the law is new, there is no precedent or fixed policy about how far it extends.

"You research and make it up as you go," Brenman said. "It is pretty clear the Legislature intended broad coverage under this statute."

Rep. Ed Murray, D-Seattle, who sponsored the legislation, said he sees domestic-partner benefits and the statute's civil-rights protection as separate issues. However, he said a legislative staff attorney has told him that because they fall under employment benefits, domestic-partner benefits might be subject to the law.

"What we have here are two different bodies of law: one that deals generally with employment law and the other that deals with spousal benefits," Murray said. "What we need to ask is at what point are these benefits the result of one's status as an employee or their status as partners in a relationship."

In recent years, the number of employers — both public and private — that offer domestic-partner benefits has grown. The state of Washington, the city of Seattle and King County are among several government employers that offer domestic-partner benefits to their employees.

Statewide, 610 employers have policies that extend domestic-partner benefits to employees, according to the Human Rights Campaign. It's unclear what percentage of them deny these to opposite-sex couples.

Nationwide, nearly 9,000 private companies — including more than 50 percent of all Fortune 500 companies — extend domestic-partner benefits, said Brad Luna, spokesman for the Human Rights Campaign, a national gay- and lesbian-rights organization.

He said a recent Hewitt Associates study found that among the companies that offer such benefits, 58 percent extended them to both gay and straight employees.

That's in part because demand is growing.

Census estimates show that nearly 36,000 heterosexual couples in Washington lived together without being married, while 17,000 gay and lesbian couples shared a home.

Marra, the Seattle lawyer, said he's been telling clients when they ask that under the state's sexual-orientation law, if they're going to give benefits to employees in a same-sex relationship they have to be sure they're giving them to all.

"It's not surprising at all that we're facing this issue. When you create a protected class, it cuts both ways," he said.

A finding that Honeywell violated the law could set a precedent that HRC could follow in other complaints, said Kim Meyers, another Seattle employment attorney.

"Most Washington employers fall into the same category [as Honeywell], so that would be pretty significant. It could motivate other employees to bring similar claims and have an impact on whether companies feel pressured to provide this benefit or risk being challenged.

"That's where this is heading."

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com Seattle Times researcher Gene Balk contributed to this report.

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Seattle Times: Opinion--An adult approach to marriage

Seattle Times, August 25, 2006
An adult approach to marriage
By Johann N. Neem, Special to The Times

The Washington Supreme Court decision concerning gay marriage revolved around the question of whether the Legislature made a reasonable judgment when it limited marriage to an individual man and an individual woman. The court's majority decision invoked precedent and history to suggest that the Legislature was reasonable (although not necessarily right) to believe that promoting heterosexual marriage serves the vital public good of creating households in which children are raised by their biological parents.

Even if we put aside the fact that thousands of American households no longer fit the Legislature's description, the court concluded that the Washington Legislature set out a legitimate public-policy goal without violating the fundamental rights of any group of citizens under Washington's constitution.

The premise of the court's decision is that the primary goal of marriage has historically been to manage reproduction by ensuring that children are raised by their biological parents.

While one cannot doubt that this is a part, perhaps the most important part, of marriage's history, Americans do not limit marriage's benefits exclusively to children. Marriage serves adults as well. If adults benefit from marriage, we are forced to question whether the benefits of marriage should, or even can under the state constitution, be limited to heterosexual couples.

Modern American marriage dates to the early 19th century. In the decades after the American Revolution, Americans abandoned much of the old Colonial heritage of the male-controlled patriarchal household. In its place, American writers emphasized the importance of love between husbands and wives and between parents and children. While only a handful of Americans in this period advocated equal rights for men and women, families were transformed into affectionate communities in which mutual obligation through love replaced the older ideal of male control and female and filial duty.

Love was meant to promote the well-being of children, of course, but it also served adults. At a time of intense social and economic change, marriages were seen as sources of stability in which both men and women were given a permanent helpmate to aid their way in the world.

One of the most popular writers about marriage, Henry Clarke Wright, wrote in his 1854 book "Marriage and Parentage" that marriages must serve both partners. In marriage, spouses commit themselves to each other, helping each become a better person.

This point was echoed by many others. Ralph Waldo Emerson, for example, considered marriage the basis for individual self-improvement. With the help of a loving mate, we can become better people. Our mates help us become all that we can be.

Marriage is particularly well-suited for this purpose. Unlike other relationships in society, marriages are intended to be permanent. Because they are permanent, each partner has a vested interest in promoting the well-being of the other. Marriages are also distinct because they are unions of love and not self-interest.

In the market, individuals buy and sell based on mutual self-interest. Society sanctions each seeking to get the most at another's expense. This is good business. In a loving relationship, however, partners must commit themselves to promote the other's happiness rather than one's own. As a result, married couples are provided lifetime companions whose love ensures their continued support through the perilous waters of life.

Because marriages serve adults as well as children, the state authorizes various benefits to spouses. While the legitimacy of many of those benefits was not at issue in the case before the court, and remain to be litigated, they remind us that marriages in Washington and throughout the United States provide tangible legal and economic privileges to heterosexual adults that go well beyond what is needed for the care of children. This is because we see marriages as involving a relationship between adults as well as between adults and children.

To the extent that marriages are about more than just reproduction, discriminating on the basis of gender violates one of the traditional reasons that Americans have supported marriage. We each deserve the help of another. Life is hard enough.

The aid of a loving companion devoted to our welfare is sometimes the biggest benefit we have in negotiating life's obstacles. Limiting marriages to heterosexuals denies gays and lesbians one of the biggest public and private benefits of marriage.

Johann N. Neem is assistant professor of history at Western Washington University in Bellingham.

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Seattle P-I: Commentary--A new pulpit view of the marriage issue

Seattle Post-Intelligencer, WA, August 18, 2006
A new pulpit view of the marriage issue
By SUSAN PAYNTER, P-I COLUMNIST

Dearly beloved, it is time to consider elbowing the ministers, rabbis, clerics, priests and Internet-ordained Elvis impersonators out of the legal part of the marriage business.

Step back now. I did not say anything about getting rid of God or marriage.

But, like the Rev. Mark Travis of All Pilgrims Christian Church, the Rev. Diane Darling of Alki Congregational United Church of Christ and at least a dozen other religious leaders in Seattle, I say amen to their idea of examining what the heck a minister is doing by acting as the state's quasi-legal middleman or woman anyway.

Even before same-sex unions got our attention and drew the subsequent disapproval of the state Supreme Court, Travis and others had been "wrestling with" the issue. Admittedly, their focus intensified when it struck them that, by signing state marriage licenses, they were instruments of discrimination.

So they're not going to do it anymore.

Oh, they'll be happy to perform wedding ceremonies for two people of the same or different genders. They'll just no longer sign the paper and send it to Olympia.

Ever since he was ordained in '94 it's struck Travis as "odd and strange" that a person like himself, with no legal training in rights (as opposed to rites) and no certification by the state, had the power to sign a legal document declaring people legally wed.

When he moved here from New Hampshire he didn't even have to call Olympia and say, "Hi, I'm a new pastor in town, and I'll be deciding whether or not to marry people now," the same way your cousin Fred can do if he gets "ordained" online. To Travis it's all part of the same mockery. "Ministers and religious leaders don't sign divorce papers or death certificates," he said. "And we've taken no class on the civil rights of marriage."

Determined to no longer "participate in the prejudice" of signing the papers of some couples but not others, the minister got together first with four other pastors from United Church of Christ, then got in touch with other ministers and rabbis. And they decided: no more signing of secular documents.

He now tells couples that he'll happily perform their ceremonies whether they get legally married or not. He'll even provide a beautiful hand-lettered certificate stating that, on such and such a day, so and so were united at All Pilgrims Church and give them a symbol of the sacrament of the day. But it will bear zero legal significance.

He hopes that the symbol will be meaningful. But it won't carry the same civil provisions of the framed civil union certificate he and his male partner got in Vermont.

If a pair seeks the full marital rights and obligations conveyed by the state, they can take care of that at the courthouse through a judge or justice of the peace. "My calling as a minister is to nurture souls. I couldn't care less if they have a legal document," Travis said. "That's why the question of same-sex couples marrying adds a whole wonderful flavor to the issue. For my part, even if the state rules that gays could marry, I'm not going to sign those certificates either. I want the religious folks to get completely out of the legal, signing aspect."

In other words, separation of church and state.

Whoa. Breathe, please. I am not saying that the state has no stake in marriage.

As antiquated as they read, there probably is some purpose behind the Revised Code of Washington's statutes preventing the inbreeding that might follow if folks married their moms and sisters, first cousins and nieces or nephews. Or from marrying anyone under the age of 18 and possibly even from wedding more than one person at a time.

Our statute also stipulates the parties be "otherwise capable," whatever that means. Some states are pondering requiring that marrying couples first learn about the responsibilities attached to marriage. Personally, I think parenting classes for prospective parents should be mandated, but I figure the ACLU and libertarians would object.

Darling decided all on her own that she would decline to sign licenses from now on. "I went to the church board and said, 'I can't do this anymore,' " she said.

She thinks that having religious leaders involved in the legal process just adds to the confusion over marriage, same sex and otherwise. Because of their part in the civil aspect, she says, people don't distinguish between marriage as a civil contract and a sacred covenant.

"My business is the latter," she said.

Also, as a lesbian, she said, "I felt I was participating in my own oppression."

Straight or gay, in more than 250 ceremonies she has said the same words over couples. But at the end of the rites she could sign the papers for one pair but not the other.

"I asked myself, 'All right, Diane, what if several weeks ago the state Supreme Court had ruled the other way and a rush of same-sex people came to me to legally marry them?' " Immediately she knew she'd have to say no to them, too.

So far, Darling said, every pair she has since agreed to marry with the legalities removed has not only understood but also appreciated the ethics of her reasoning. "But, after all," she said, "This IS Seattle!"

She hopes others understand as well that she is not saying that the state needs to stay out of marriage but that the church needs to separate itself from the state's end of the marriage business, not to mention the business of legalized discrimination.

State Sen. Jeanne Kohl-Welles, who supports same-sex unions and has written books on marriage says "lots" of her colleagues have been thinking about these issues. She wonders, is it better to hold off for legislation allowing same sex pairs to legally marry in the full sense of that loaded word, or to take such incremental steps as civil unions?

I think that, when it comes to church and state, division could unite us.

Dare I say that, if we divorced the two -- if legal unions were one thing and religious ceremonies another -- we wouldn't be so hung up on who gets to have them?

Susan Paynter's column appears Mondays, Wednesdays and Fridays. Call her at 206-448-8392 or e-mail susanpaynter@seattlepi.com.


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Seattle Times: Opinion--Defending the Legislature's right to defend marriage

Seattle Times, WA, August 16, 2006
Defending the Legislature's right to defend marriage
By Dan Swecker

The Washington Supreme Court's recent ruling that the state's 1998 Defense of Marriage Act is constitutional is a win for our democratic process and the majority of Washington citizens who believe marriage should only be between one man and one woman.

This case is as much about the separation of powers and upholding the state constitution as it is about marriage. Regardless of where you stand on this intensely emotional issue (and a December 2005 Elway poll showed that only 35 percent of respondents favored same-sex marriage), the Legislature, not the court, had the duty and right to define marriage.

Considering that the judicial branch has a history of legislating from the bench, it was stunning for some that the court recognized the clear separation of powers and upheld the Legislature's intent. But this is how our judicial system is supposed to act.

What is society's interest in defining traditional marriage? If we had no government institution called marriage, people would choose to live together based on their feelings for each other or for achieving some common purpose. We would soon recognize that only one type of relationship would rise to the level of critical government interest
and concern — that is the relationship between one man and one woman,because it has potential to produce offspring.

Society would quickly determine that providing incentives to keep these relationships intact, for as long as possible, should be a very high priority. Through reasonable legal means, we would make provisions for these relationships to hold property, share benefits and provide the best possible nurturing environment for the next generation. We would also determine the conditions for the resolution of these benefits and responsibilities in the event that the marriage is terminated. That is exactly what we have done in defining marriage.

It is important not to change the focus of people entering into the marriage contract. This is not about feelings and it is not about the mutual benefit of the two parties. It is about the next generation. The best interest of children is to be raised by their biological mother and father. Society needs to do more to encourage moms and dads to stay together and make the sacrifices necessary to take care of kids.

Supporters have said same-sex marriage would strengthen the institution of marriage and family by reaffirming commitment and fidelity. But judging by data about the Netherlands, where homosexual relationships gained legal recognition in 1998, the opposite is happening. Studies have shown that since these changes, the proportion of the Dutch population that is married has been steadily decreasing while the proportion of the divorced population has been steadily rising.

The Netherlands' decision to sanction same-sex marriage comes amid the equalization of other types of relationships with marriage there. The Netherlands created "registered partnerships" in 1998, in some ways similar to Vermont's civil unions or California's domestic partnerships. A registered partnership, which is available to heterosexual and homosexual couples alike, is a contractual agreement between two people that provides many of the same benefits as marriage. During this time, there was a notable increase in marriage dissolution among heterosexual couples and even "flash annulments," in which a couple mutually decides to downgrade their marriage to a registered partnership and then terminates it, thus avoiding the complex divorce process.

These changes have devastated Dutch marriage. When society demands less commitment to the institution, people also demand less. I fear that if we were to follow the Netherlands' example, it would have a terrible effect on marriages here in the U.S.

One might argue that we could easily include other relationships without hurting the traditional institution of marriage. The homosexual community says "gay marriage" is one of those. What about a polygamous relationship in which a man has two or more wives? Or a bisexual who wants a husband and a wife? What about nonsexual relationships, such as same-sex siblings; an elderly parent dependent on an adult child; two good friends, and so forth? All of these relationships have value for the parties involved. Why not include them as well?

The answer is, we need to keep government focusing our resources on the critical group we originally identified, the children. To do otherwise would simply reduce resources available to sustain children and families of traditional marriages and diminish the level of societal commitment to this one most important union.

Children are the future of any society. Although it may not be the only way, protecting traditional marriage is the best way we can take care of our kids.

State Sen. Dan Swecker, R-Rochester, was the prime sponsor of the
Senate version of the Defense of Marriage Act bill in 1998. The
Legislature passed the House version of DOMA that year.

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