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)