Seattle Court Overrules DOMA, Proving Need for FMA

by Allie Martin and Jenni Parker
August 5, 2004

(AgapePress) - An attorney with a national pro-family organization says a ruling by a Washington state judge underscores why a Federal Marriage Amendment is needed in the U.S.

On Wednesday, King County Superior Court Judge William Downing ruled that Washington's Defense of Marriage Act (DOMA), which defines marriage as the union of one man and one woman and bans same-sex marriage, violates that state's constitution. Ruling in favor of a challenge to the DOMA law the state legislature passed in 1998, Downing basically decreed that same-sex couples have a constitutional right to marry in the state of Washington.

The court challenge was filed by the Lambda Legal Defense and Education Fund, a homosexual rights activist group, which sued after being invited to do so by King County Executive Ron Sims. Among the pro-family law firms intervening in the case were the Pacific Justice Institute and the Alliance Defense Fund, who joined in a motion on behalf of several African American clergy and state lawmakers who supported the DOMA.

However, Judge Downing declared in his ruling that denying homosexuals the right to marry violates their "due process rights," and that "there are no scientifically valid studies tending to establish a negative impact on the adjustment of children raised by an intact same-sex couple" as compared with those raised by intact heterosexual couples. In reaction, PJI President Brad Dacus commented that the enactment of social policy is the job of lawmakers, and not the job of un-elected judicial activists. "This judge has no right to substitute his judgment for that of a democratically elected legislature," Dacus says.

Bob Knight

Meanwhile, members of pro-family groups reacted with similar outrage. Concerned Women for America, the nation's largest women's public policy organization, responded to the ruling with calls for Judge Downing to either step down or stop attacking marriage from the bench. Bob Knight of CWA's Culture and Family Institute remarked, "The core definition of marriage, universally understood as the union of a man and a woman, means nothing to Mr. Downing, who is apparently as reckless as the four judges in Massachusetts who couldn't find a single rational basis for marriage."

The pro-family spokesman added that the judge had no authority to rewrite Washington's "perfectly good marriage law," and he encouraged citizens of the state to demand that their legislators begin proceedings to remove Downing from his position. "Anyone who doesn't know that a wedding needs a bride and a groom is not fit to serve as a judge," Knight said.

And Vision America president Rick Scarborough, upon learning of the Seattle court ruling, wanted to know, "What will it take to get the elite to recognize reality?" He warned lawmakers that the American people "are not going to let the courts change the definition of marriage without a fight -- and we've got plenty of fight in us." He added that politicians across the country had better "get off their duffs and do what the people demand -- protect marriage now."

Constitutional Amendments Essential
While Brian Fahling, an attorney with the American Family Association Center for Law and Policy, is likewise outraged by developments in Washington, he says the judge's ruling comes as no surprise. Fahling notes that, although Washington had statutory law that protected marriage and even state Supreme Court case law from the early 70s, "what it didn't have was a constitutional amendment protecting marriage."

Brian Fahling

Not having a state constitutional amendment to support DOMA left the marriage defense law vulnerable, the attorney points out. "The judge can wipe out legislation with the stroke of a pen," he says, "and that's what happened in Washington. It's outrageous, it's beyond the pale, and I hope the people of the state of Washington are going to wake up on this one."

Fahling described Downing's August 4 ruling as, apparently, a "bold and unapologetic statement by the judicial branch that it intends to take over the lawmaking duties in Washington State whenever it has an inkling to do so." Now, he says, it is up to the people of the state to "reclaim their right to self-government by amending their constitution to preserve marriage as it has existed since the dawn of civilization."

Washington is one of 38 states that have passed DOMAs since 1996. However, Fahling contends that the Seattle court decision reflects a growing national trend among judges and low-level civil authorities to disregard both binding law and societal norms in favor of "what they perceive to be an evolving moral paradigm." And the pro-family lawyer feels that scenario in Washington is likely to be repeated in other states if they do not act urgently to shore up their state constitutions against judicial activism, as Missouri has recently done.

On August 3, Missouri voters went to the polls and overwhelmingly supported the biblical definition of marriage, voting more than two-to-one to amend their state constitution and legally enshrine that definition. This victory means five states in the union -- Alaska, Hawaii, Nebraska, Nevada, and now Missouri -- all have marriage amendments to their constitutions. And at least 10 other states are set to vote on similar measures this fall.

Fahling is hopeful that other states will follow their examples, and he is emphatic about the need for pro-family citizens and legislators to act quickly. "In your state, if you do not have a state marriage amendment protecting marriage between a man and a woman," he says, "then you need to get on the ball and see that that is done, because we don't know how long it's going to take to get a Federal Marriage Amendment."

Ultimately, Fahling feels a Federal Marriage Amendment is the only answer to judicial activists and their efforts to legislate a redefinition of marriage from the bench. But in meantime, the AFA attorney says it is vital for the states to have their own constitutional amendments in place to protect marriage and prevent DOMA laws from being overturned by activist courts.