Andersen v. King County

138 P.3d 963

158 Wn.2d 1

Heather ANDERSEN and Leslie Christian; Peter Ilgenfritz and David Shull; Johanna Bender and Sherri Kokx; Janet Helson and Betty Lundquist; David Serkin-Poole and Michael Serkin-Poole; Vegavahini Subramaniam and Vaijayanthimala Nagarajan; Elizabeth Reis and Barbara Steele; and Michelle Esguerra; and Boo Torres De Esguera, Respondents, v. KING COUNTY; Ron Sims, King County Executive; and Dean Logan, King County Director of Records, Elections and Licensing Services Division, Appellants State of Washington, Appellant Senator Val Stevens; Representative Gigi Talcott; Coalition for Community Development and Renewal; Nuwanda Adams; Tracey Armstrong; Gerald Baker; Richard Blair; Ed Cook; Rick Danner, Sr.; Bill Demps; Harvey Drake; George Frost; Elvin Gladney; Aaron Haskins; Rick Kingham; Samuel K. Law; Jimmie W. Lee; Dan Magalei;

Dana McClendon; Tony Morris; Nate Mullen; Paul Olver; Joseph Phillips; David Pierson; John Penton; Kenneth J. Ransfer, Sr; Willie C. Seals, Jr.; Paul Stoot; Washington Talaga; Daniel Villa; David Wallace; Thomas L. Westbrook; Doug Wheeler; Earnest Williams; Reggie Witherspoon; Nathaniel Wolf; Grant Zweigle; and Washington Evangelicals for Responsible Government, Appellants/Intervenors Celia Castle and Brenda Bauer; Pamela Coffey and Valere Tibbett; Gary Murell and Michael Gyde; Christina Gamache and Judith Fleissner Kevin Chestnut and Curtis Crawford; Jeff Kingsbury and Alan Fuller; Lauri Conner and Leja Wright; Allan Henderson and John Berquist; Marge Ballack and Diane Lantz; Tom Duke and Phuoc Lam; and Kathy and Karrie Cunningham, Respondents, v. State of Washington, Appellant.

No. 75934-1.

No. 75956-1.

Supreme Court of Washington, En Banc.

Argued March 8, 2005.

Decided July 26, 2006.

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Steven T. O'Ban, Kristen Kellie Waggoner, Ellis Li & McKinstry PLLC, Seattle, Darren E. Carnell, Janine Elizabeth Joly, King County Pros Attorney, Seattle, William Berggren Collins, Attorney at Law, Highways Licenses Bldg Olympia, Kristofer John Bundy, King County Admin Bldg, Seattle, for Petitioner/Appellants.

Jennifer Suzanne Divine, Bradley H. Bagshaw, Helsell Fetterman LLP, Seattle, Patricia S. Novotny, Attorney at Law, Seattle, Nancy Lynn Sapiro, Lisa Marie Stone, Northwest Women's Law Center, Seattle, Jamie D. Pedersen, Matthew J. Segal, Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, Aaron Hugh Caplan, Attorney at Law, ACLU of Washington, Seattle, Roger Ashley Leishman, Davis Wright Tremaine, Seattle, Karolyn Ann Hicks, Stokes Lawrence PS, Seattle, for Appellee/Respondents.

Kathleen Phair Barnard, Seattle, for Amicus Curiae American Federation of Teachers et al.

Salvador Alejo Mungia, II, Gordon Thomas Honeywell, Tacoma, Colin Jeffrey Folawn, Schwabe Williamson & Wyatt, Seattle, for Amicus Curiae American Psychological Ass'n.

Breean Lawrence Beggs, Center for Justice, Spokane, for Amicus Curiae Children's Rights Organizations.

Robert A. Free, Kathleen A. Wareham, Ester Frances Greenfield, Seattle, for Amicus Curiae Compassion in Dying of Washington, et al.

Theresa Ann Schrempp, Sonkin & Schrempp PLLC, Bellevue, David Knox Dewolf, Gonzaga School of Law, Spokane, for Amicus Curiae Concerned Women for America.

Joshua K. Baker, Washington DC, Lincoln J. Miller, Roger D. Sherrard, Sherrard & McGonagle, Poulsbo, for Amicus Curiae Families Northwest.

P. Craig Beetham, Eisenhower & Carlson, Tacoma, for Amicus Curiae Family Law Practitioners.

Todd Michael Nelson, Ferring Nelson, LLP, Seattle, David R. Langdon, Langdon & Shafer, LLC, Cincinnati, Oh, for Amicus Curiae Family Research Council.

Nancy Dykes Isserlis, Winston & Cashatt, PS, Spokane, for Amicus Curiae Greater Seattle Business Ass'n.

Michael Richard Wrenn, Matthew Aaron Carvalho, Molly A. Terwilliger, Andrew Kamins, Heller Ehrman, LLP, Seattle, for Amicus Curiae History Scholars.

Nancy Dikes Isserlis, Winston & Cashatt, PS, Spokane, for Amicus Curiae, Inland Northwest Business Alliance.

Michael Richard Heath, Cairncross & Hempelmann PS, Seattle, for Amicus Curiae Legal Marriage Alliance of Washington et al.

Suzanne J. Thomas, Law Offices of Suzanne J. Thomas, PS, Seattle, for Amicus Curiae Libertarian Party of Washington State.

Suzanne J. Thomas, Law Offices of Suzanne J. Thomas, PS, Seattle, for Amicus Curiae Log Cabin Republicans of Washington.

Karen M. McGaffey, Amanda J. Beane, Melissa Robertson, Kirstin S. Dodge, Perkins Coie LLC, Seattle, for Amicus Curiae Loren Miller Bar Ass'n et al.

Monte N. Stewart, William C. Duncan, Marriage Law Foundation, Provo, Ut, Don Edward Powell, Richland, for Amicus Curiae Marriage Law Foundation.

David L. Donnan, Washington Appellate Project, Vanessa Soriano Power, Stoel Rives LLP, Seattle, for Amicus Curiae Multifaith Works Religious Coalition for Equality et al.

Lindsay Taylor Thompson, Thompson Gipe, PC, Seattle, for Amicus Curiae Pride Foundation et al.

Lisa Ellen Brodoff, Seattle University Peterson Law Clinic, Seattle, for Amicus Curiae Senior Services of Seattle/King County.

Lisa Ellen Brodoff, Seattle University Peterson Law Clinic, Seattle, for Amicus Curiae Services & Advocacy for Gay Lesbian et al.

Hugh Davidson Spitzer, Foster Pepper PLLC, Seattle, for Amicus Curiae State Legislators, Representatives, and Senators.

Kenneth Duane VanDerhoef, Seattle, Richard G. Wilkins, Provo, UT, Paul Benjamin Linton, Northbrook, ILL, for Amicus Curiae, United Families International.

Salvador Alejo Mungia, II, Gordon Thomas Honeywell, Tacoma, Colin Jeffrey Folawn, Schwabe Williamson & Wyatt, Seattle, for Amicus Curiae Washington State Psychological Ass'n.

Beth A. Bloom, Frank Freed Subit & Thomas, Seattle, Ellizabeth L. Rosenblatt, Douglas NeJaime, Irell & Manella, LLP, Los Angeles, Jennifer K. Brown, Deborah A. Widiss, Legal Momentum, New York, NY, for Amicus Curiae Women's Organizations.

MADSEN, J.

¶ 1 The trial courts in these consolidated cases held that the provisions of Washington's 1998 Defense of Marriage Act (DOMA) that prohibit same-sex marriages are facially unconstitutional under the privileges and immunities and due process clauses of the Washington State Constitution. King County and the State of Washington have appealed. The plaintiffs-respondents, gay and lesbian couples, renew their constitutional arguments made to the trial courts, including a claim that DOMA violates the Equal Rights Amendment.

¶ 2 The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer "yes," and we therefore reverse the trial courts.

¶ 3 In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.

¶ 4 It is important to note that the court's role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be. United States Supreme Court Justice John Paul Stevens talked about the court's role when he described several noteworthy opinions he had written or joined while "convinced that the law compelled a result that [he] would have opposed if [he] were a legislator." John Paul Stevens, United States Supreme Court Justice, Judicial Predilections, Address to the Clark County Bar Association, Las Vegas, Nev. 2 (Aug. 18, 2005). As Justice Stevens explained, a judge's understanding of the law is a separate and distinct matter from his or her personal views about sound policy. Id. at 17.

¶ 5 A judge's role when deciding a case, including the present one, is to measure the challenged law against the constitution and the cases that have applied the constitution. Personal views must not interfere with the judge's responsibility to decide cases as a judge and not as a legislator. This, after all, is one of the three legs supporting the rule of law. Here, the solid body of constitutional law disfavors the conclusion that there is a right to marry a person of the same sex. It may be a measure of this fact that Justice Fairhurst's dissent is replete with citation to dissenting and concurring opinions, and that, in the end, it cites very little case law that, without being overstated, supports its conclusions.

¶ 6 Perhaps because of the nature of the issue in this case and the strong feelings it brings to the front, some members of the court have uncharacteristically been led to depart significantly from the court's limited role when deciding constitutional challenges. For example, Justice Fairhurst's dissent declines to apply settled principles for reviewing the legislature's acts and instead decides for itself what the public policy of this state should be. Justice Bridge's dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it.¹ Justice J.M. Johnson's concurrence, like Justice Fairhurst's dissent, also ignores the proper standards for reviewing legislation. And readers unfamiliar with appellate court review may not realize the extent to which this concurrence departs from customary procedures because, among other things, it merely repeats the result and much of the reasoning of the court's decision on most issues, thus adding unnecessarily to the length of the opinions.

¶ 7 In brief, unless a law...