ChezLark

I’ve been staring at this for a little while now, and I’m not sure what to think. On one hand, I think it might be a brilliant piece of “political street theater”. On the other hand, I think it may be futile.

The Washington Defense of Marriage Alliance (which, confusingly, is opposed to Washington State’s Defense of Marriage Act, or DOMA, which restricts marriage to one man and one woman), is floating a ballot initiative that would restrict marriage in Washington State to only those couples who can, and do, produce children.

Why do such a crazy thing? Well, last July, the Washington State Supreme Court ruled, in Andersen v. King County, that Washington’s Defense of Marriage Act is constitutional. The court found that (among other things):

• Washingtonians do not enjoy a fundamental freedom to marry any person they want
• Because no fundamental right is implicated, the “rational basis” standard is applied when reviewing the gay marriage ban
• Under that standard, the court must not strike down legislation if the legislature could have had any rational basis at all for passing it
• “Procreation and child-rearing” are legitimate state interests
• The legislature could have rationally believed that it is beneficial to children to be raised by opposite-sex couples
• Because of this, the legislature could have rationally chosen to make marriage available only to those couples who could become opposite-sex parents
• Because of this, the gay marriage ban embodied in the Defense of Marriage Act passes the “rational basis” test and is constitutional.

You can read more in my previous post on the matter. You can read the entire ruling online. Gay rights activists have been up in arms about the ruling, and I was very disappointed by it, as well.

Enter the Washington Defense of Marriage Alliance. In order to highlight the absurdity of the Andersen ruling, they are carrying it to its logical conclusion and proposing a ballot initiative that restricts marriage only to opposite-sex couples who actually procreate.

As far as I can tell, the absurdity this highlights in the Andersen case goes something like this:

• In Andersen, the court ruled that it was rational for the legislature to believe that children are best raised “in families consisting of a father, mother, and their biological children”.
• Because of this, the court ruled that it was rational for the legislature not to make the institution of marriage available to gay couples, because doing so would not further the state’s interest in encouraging opposite-sex-parented-families.
• It was raised at trial, but found not to be dispositive, that childless couples are not currently excluded from marriage. The court found that the legislature’s categorizations need not be perfect to be rational.

This all suggests, though, that the institution of marriage could be “tightened up” without ill effect. If the purpose of the marital institution is to provide a stable environment for the raising of children, childless couples need not be allowed access to it, just like gay couples need not be allowed access. In fact, allowing childless couples access to the institution is arbitrary and unfair. In the interests of fairness, childless couples should be excluded!

More from WA-DOMA:

Absurd? Very. But there is a rational basis for this absurdity. By floating the initiatives, we hope to prompt discussion about the many misguided assumptions which make up the Andersen ruling. By getting the initiatives passed, we hope the Supreme Court will strike them down as unconstitional and thus weaken Andersen itself. And at the very least, it should be good fun to see the social conservatives who have long screamed that marriage exists for the sole purpose of procreation be forced to choke on their own rhetoric.

Here is a flavor of the proposition, which is actually fairly lengthy. You can read the whole thing online. Bold are mine:

[...]
NEW SECTION. Sec. 5. A new section is added to chapter 26.04 RCW to read as follows:

(1) All couples married in this state shall have three years from the date of solemnization of the marriage, or eighteen months from the effective date of this act, whichever is later, to have filed with the state registrar of vital statistics or designated deputy registrar at least one certificate of marital procreation as described in section 11 of this act.

(2) Failure to comply with subsection (1) of this section shall result in the marriage being unrecognized as described in section 7 of this act, effective as of the midnight ending the time period described in subsection (1) of this section.

(3) A marriage that has become unrecognized pursuant to subsection (2) of this section shall remain unrecognized until the couple has complied with the requirements of subsection (1) of this section, or until the marriage is annulled in accordance with section 8 of this act, or until the marriage is dissolved for any other reason.

(4) The couple shall be subject to the penalties of section 7 (2) through (4) of this act for any marital benefits received during the time their marriage was unrecognized.

(5) Within fourteen days after the date described in subsection (1) of this section, the state registrar of vital statistics shall verify that at least one certificate of marital procreation has been filed for the married couple. In the absence of any such certificate, the registrar shall proceed in accordance with section 8 of this act.

[...]

NEW SECTION. Sec. 8. A new section is added to chapter 26.09 RCW to read as follows:

(1) When the state registrar of vital statistics determines that a marriage solemnized in this state has failed to produce offspring as described in section 5 of this act, he or she shall file a petition in the superior court of the county wherein the marriage license was filed requesting that the marriage be annulled on the grounds of failure to fulfill the purpose of marriage. This petition shall include the names and last known address of the husband and wife, the date of their marriage, the date of the deadline described in section 5(1) of this act, and a statement declaring that no certificates of marital procreation have been filed as required by law.

Did you get all that? Married couples get three years to make good on what is, after all, the “purpose of marriage”. Since marriage is (evidently) all about raising children, the rule is simple: no children, no marriage. It’s hard to argue with the logic. Like I said up top, though, I’m not sure if this is brilliant or counterproductive. On the one hand, thoughtful voters may understand that this proposition highlights (at least) two important flaws in the Andersen ruling:

• Marriage is not, or at any rate is no longer, exclusively about child-rearing. As the Supreme Court of Massachusetts put it in Goodridge, “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage“. Voters are likely to react viscerally to this proposition because they feel instinctively that the State should not be telling two loving individuals who wish to commit themselves to each other that they may not, simply because they are unable or unwilling to have children. That’s exactly the point the gay community makes for inclusion in the institution of marriage.
• Even if you believe that children are best raised by opposite-sex parents, the exclusion of loving individuals who are unable or unwilling to have children from the institution of marriage is, at best, mean-spirited, and at worst, harmful to children raised in “non-traditional” families. Again, even those voters who think children should have a mother and a father are likely to think to themselves “even so, why shouldn’t two people be able to get married if they love each other but don’t want children?” To which, again, the gay community would say: Exactly.

On the other hand, though, I don’t agree with this proposition! I’m not sure who would. I want the institution of marriage expanded, not restricted. Is it responsible to support, or vote for, a proposition purely as a satirical gesture? I’m not sure it is. So, I’m in something of a quandary.

One final note: on the astronomically remote chance that this proposition actually passed, I do think it would be struck down as unconstitutional, but not, perhaps, for the reason that its authors imagine. In the Andersen ruling, the court first decided that the “rational basis” test was appropriate, instead of the more demanding “strict scrutiny” test, because no “fundamental right” was involved. Among other things, “fundamental rights” must be

[O]bjectively, ‘deeply rooted in this Nation’s history and tradition’ . . . and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed

Part of the problem of the Andersen ruling, though, is that this standard is hopelessly vague and subject to the “framing problem”. The court found that no “fundamental right” is involved because Washingtonians cannot claim to have ever enjoyed the right to marry someone of the same sex, thus flunking the “deeply rooted” part of the test. Of course, if you believe that the right at issue is the right to marry the person of your choosing, then it’s easy to argue that this right is “deeply rooted in this Nation’s history and tradition”. The framing you choose to use entirely determines the result.

So, I’m depressed to say, it seems fairly clear that if this proposition were ever reviewed by a court, it could easily find that in this case, a “fundamental right” is indeed at stake, since it’s unarguably a “deeply rooted” right to be able to choose the opposite-sex person you wish to marry. This would be entirely consistent with the Andersen ruling.

The court would thus complete the bigoted, circular, self-reinforcing reasoning it used in Andersen:

• The gay community is not entitled to the rights the rest of us enjoy, because they have never had those rights.
• Nor can they be given the rights the rest of us enjoy… because they haven’t had those rights in the past.
• The rights we enjoy, however, cannot be taken away, because we have always had them.

Ain’t America grand?

(Via Slog and Seattleist)

We’ve had a lot of snow and ice this winter in the Northwest, which is quite unusual. In Seattle, at least, it’s above freezing now and everything is melting.

But holy God, the drivers here are awful in the snow.

How bad?

This bad.

Oh, and this is what happens to our buses.

Second only to San Francisco, apparently. From USA Today:

The San Francisco metropolitan area has a higher percentage of people who are regular drug users than any other major metropolitan area in the USA, a study from the Substance Abuse and Mental Health Services Administration found.

Nearly 13% of San Francisco residents reported using some type of illicit drug, such as marijuana, cocaine or heroin, in the previous month, according to data from the National Surveys on Drug Use and Health 2002-05. The national average is 8.1%.

Other areas with drug-abuse rates higher than the national average included Seattle, 9.6%; Detroit, 9.5%; Philadelphia, 9.1%; and Boston, 8.5%. Cities with the lowest drug use: Houston, 6.2%; and Washington, Dallas and Riverside/San Bernardino, Calif., all at 6.5%.

These numbers seem surprisingly high to me. Would you have guessed that nearly one in ten Seattle residents had used an illegal drug in the previous month alone? This implies that the proportion of the population that uses illegal drugs occasionally could be significantly higher.

It would also be interesting to know what proportion of total usage is accounted for by pot alone.

Also, notice that the numbers are in a fairly narrow band. Evidently, boring Riverside’s drug-usage rate is fully half that of San Francisco’s. This seems to imply that the national rate of illegal drug use is fairly consistent at between 6% and 12% for previous-month usage.

This strong:

Seattle Public Utilities: Customers whose garbage can or lid blew away during the storm should call 206-684-3000 to have it replaced.

Sufferers of Seasonal Affective Disorder, take heart; today, December 21st, is the shortest day of 2006, which means more sun is on the way. Here in Seattle, the sun will set this afternoon at an utterly depressing 4:20PM. But tomorrow, it’s 4:21!

Also, only two more days until Festivus!

A new government study indicates that marijuana is almost certainly the United States’ biggest cash crop:

A report released today by a marijuana public policy analyst contends that the market value of pot produced in the U.S. exceeds $35 billion — far more than the crop value of such heartland staples as corn, soybeans and hay, which are the top three legal cash crops.

California is responsible for more than a third of the cannabis harvest, with an estimated production of $13.8 billion that exceeds the value of the state’s grapes, vegetables and hay combined — and marijuana is the top cash crop in a dozen states, the report states.

Nationwide, the estimated cannabis production of $35.8 billion exceeds corn ($23 billion), soybeans ($17.6 billion) and hay ($12.2 billion)

The description of the study in this article is a little confusing — in one place, it says that the state with the second-most-valuable annual harvest is Tennessee, but that Washington is in second place for the value of existing, indoor pot plants. I’m not sure why the two don’t correspond.

So what? Well, the incredible value of pot being grown in the US, and the utter failure of “war on drugs” policies to meaningfully curb either the production or the consumption of this relatively harmless substance are powerful arguments for legalization. Dan Savage, editor of the local Seattle indie rag The Stranger, argues that legalizing pot will make it easier to keep out of the hands of young people, not harder:

If we want to keep pot out of the hands—and lungs and stomachs and brains—of the dariling kiddies, then we need to legalize pot. Someone with a license to sell booze isn’t going to risk losing that license by selling cases of Schlitz to children. A liquor license is a too valuable, and booze business is too profitable, to flush it away by selling six-packs to 14 year-olds.

Someone who sells pot, on the other hand, doesn’t need a license. It’s every bit as illegal to sell pot to 15 year-olds as it is to 25 year-olds or 35 year-olds. Pot dealers, unlike booze dealers, have no reason to police themselves. So if you want to stop pot dealers from selling to high school students (hell, if you want to stop high school students from dealing), legalize pot, issue licenses to growers and dealers, and sell it in “coffee shops” like the Dutch.

Will some kids manage to get their hands on pot anyway? Yes, some will—just like some kids get their hands on beer. But it will be much, much harder for them to get their hands on pot.

On a different note, building a viaduct tunnel on the Seattle waterfront has an estimated price tag of $4.6 billion. The article linked to above doesn’t mention what the annual value of the marijuana harvest in Washington is, but let’s say it’s a little less than Tennessee and call it $4 billion a year. That means a 10% tax on pot could single-handedly pay for the viaduct tunnel in less than ten years.

Smoke that.

I just got up with my daughter, who is wearing a leopard-skin outfit and tossing crackers to our cats (don’t ask). It’s completely dark outside, and we’re listening to NPR.

Can you imagine anything more depressing than what we just heard:

Good morning, it’s Sunday, December 10th. Today in Seattle, the sun will rise at seven fourty-seven, and will set this afternoon at four eighteen PM.

Ugh. I guess we can expect it to start getting light in about an hour…

We had a snow day today. A storm dropped a couple inches of snow on Seattle last night, and it froze hard overnight, so we all woke up to streets coated in ice and snow. Seattle isn’t exactly equipped to deal with snowy weather, since it very rarely snows here, so schools and businesses were closed today, and the Department of Transportation told people to stay home if they could.

Tonight, it looks like we might be set to break some temperature records, as the low is forecast at 18F for Seattle. This might not sound to impressive to people living in the northern states or Canada, but it’s pretty darn cold for Seattle.

I took some pictures this morning of all the ice and snow lying around, and have started running them at chromalark. Here’s the first:

It looks like two more days of snow and ice and then we might be out of the woods; it’s supposed to be cold and clear tomorrow, with another storm coming through in the evening. Then, temperatures get back above freezing and it’s back to endless rain.

The Seattle Times reports that Seattle is the second-gayest city in the US:

Among the 50 largest U.S. cities, Seattle is second only to San Francisco in the percentage of residents identifying themselves as gay, lesbian or bisexual, a new study reports.
[...]
The study reports found that 12.9 percent of Seattle residents — roughly 57,900 people — identified themselves as gay, lesbian or bisexual. In San Francisco, 15.4 percent of residents identified themselves as gay, lesbian or bisexual.

Now, if we can only get the freaking gay marriage ban reversed, we’ll be getting somewhere.

I told you it was wet. Seattle just beat its previous record for the most rainfall in the month of November, and it’s only the 16th!

By Wednesday evening, the month’s total rainfall reached 11.63 inches, washing away the November record of 11.62 inches that fell at Sea-Tac Airport in 1998.

We’re well on the way to log Seattle’s rainiest month ever, since the record is only 12.92 inches, in January 1953, and we’ve got a whole two more weeks to go.

Interestingly, November 6th, 2006 was also the third-rainiest day ever in Seattle; 3.29 inches of rain fell on that day alone.

On the plus side, most ski resorts are opening today or tomorrow.

My apologies for the light blogging over the past week or so. I was sick, then I was more sick, then I had a conference to attend, then I remained sick, then the elections rolled through my life like a herd of stampeding buffalo, and now I’m finally getting back on my feet.

To top it all off, the Northwest has been getting drenched for a solid week now. Everyone likes to make fun of Seattle for all the rain it gets, but in truth, we get a lot less water than many other cities; it’s just overcast an awful lot during the winter. This past week, though, has been apocalyptic.

It seems like every river in the state is flooding; the news has been carrying images of streets that look like rivers in towns on floodplains. Earlier this week when the rains were heaviest, Seattle’s international airport’s parking structure was inaccessible from the usual approach, as the road was underwater. Eighteen inches of rain fell in 36 hours in Rainier National Park leading up to today. In comparison, the city of Phoenix gets about eight inches in an entire year. The Sunshine Point Campground in the park was wiped off the map by the Nisqually river. The Carbon River Road was damaged so heavily that the park service says they may not bother rebuilding it. The rains washed out roads and today the park was closed completely for the first time in recent memory. Elsewhere, sections of the North Cascades Highway are closed due to mudslides.

It’s still raining. Seven to fourteen more inches of water are expected to fall on the mountains today alone. On the plus side, the freezing level is low enough that the water is falling as snow above 3,000 or 4,000 feet, which helps prevent river flooding, and gets us set up for the ski season.

It’s still raining.

What is this guy smoking? From the Financial Times:

US Vice-President Dick Cheney repeated assertions on Sunday on links between the former Iraqi regime of Saddam Hussein and al-Qaeda despite a recent Senate intelligence committee report that concluded otherwise.

In defending the decision to invade Iraq despite its lack of weapons of mass destruction, Mr Cheney said the fact that Abu Musab al-Zarqawi, the former head of al-Qaeda in Iraq who was killed in a US air strike this year, was in Baghdad before the war was evidence that Iraq had links to al-Qaeda.

But a Senate intelligence committee report on prewar Iraq intelligence released on Friday concluded that there was no evidence that Mr Hussein’s Ba’athist regime had either harboured or turned a blind eye to Mr Zarqawi.

Own a home?

Look at this.

Or not.

Well the decision has been released.

From the ruling; bold is my emphasis:

In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution’s privileges and immunities clause that is applied under the federal constitution’s equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature’s decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes. Accordingly, there is no violation of the privileges and immunities clause.

There also is no violation of the state due process clause. DOMA bears a reasonable relationship to legitimate state interests — procreation and child-rearing. Nor do we find DOMA invalid as a violation of privacy interests protected by article I, section 7 of the Washington State Constitution. The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex.

Finally, DOMA does not violate the state constitution’s equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.

From Justice Fairhurst’s dissent; italics are in the original; the bold passage is my emphasis:

Contrary to the plurality’s discussion, this case does not present the issue of whether allowing opposite-sex couples the right to marry is rationally related to the State’s supposed interests in encouraging procreation, marriage for relationships that result in children, and traditional child rearing. Undoubtedly, state-sanctioned, opposite-sex marriage has a conceivable rational basis–some opposite-sex couples can procreate, and the State may have a legitimate interest in encouraging procreation and family stability by allowing such couples to marry.

But DOMA in no way affects the right of opposite-sex couples to marry — the only intent and effect of DOMA was to explicitly deny same-sex couples the right to marry. Therefore, the question we are called upon to ask and answer here, which the plurality fails to do, is how excluding committed same-sex couples from the rights of civil marriage furthers any of the interests that the State has put forth. Or, put another way, would giving same-sex couples the same right that opposite-sex couples enjoy injure the State’s interest in procreation and healthy child rearing?

Of course it wouldn’t.

The Washington Supreme Court page claims that

[A] decision in Andersen v. King County, a consolidated case regarding Washington’s Defense of Marriage Act, is expected tomorrow, July 26, 2006.

The Washington State Supreme Court says its long, long, long-awaiting ruling on the constitutionality of our gay-marriage ban is “imminent”.

Today is the longest day of the year in the northern hemisphere. The sun will set in Seattle this evening at 9:11PM (yay, endless evenings!) and the National Weather Service’s forecast has a zero chance of precipitation for its entire 5-day span. Outside my window it’s bright and sunny and 63F.

Welcome, summer!

CNNMoney says that real estate valuations are forecast to keep rising strongly in Washington state. I can’t decide whether this is good or terrifying.

MoveOn is organizing a bunch of vigils tomorrow to protest the warrantless spying program. I would like to go to one, but it looks like they’re all being held between 5:00PM and 6:00PM, and I will still be at work (easy joke in here about protesters).

Anyway, if you are free for some reason, it might be interesting to go check one of them out. There’s a vigil at 6:00PM at Westlake Mall, and you can see others around Seattle at MoveOn’s web site.

There was no measurable precipitation at Sea-Tac yesterday, so Seattle failed to set a new record for most consecutive days of rain. This past stretch was 27 days long, but the record is 33 days, set in 1953.

Several people have asked about the winter of 1998-1999, when (as they remember it), it rained for 90 straight days. The statistic from that winter is actually that it rained for 90 days of a 120-day window from November 1st to February 28th. There were several sunny days sprinkled in there, and the longest stretch of consecutive days of rain was 18 days.