A Supreme Surprise! Washington State's DOMA Ruled Constitutional

by Jody Brown and Allie Martin
July 26, 2006

(AgapePress) - - Either to its embarrassment or to its esteem, Massachusetts remains the only state in the U.S. where same-sex "marriage" is legal. In somewhat of a surprise decision, the Washington State Supreme Court has ruled that a law restricting marriage to one man and one woman, passed by the Washington Legislature in 1998, is constitutional.

The court's 5-4 decision, handed down earlier today (July 26), reverses the decisions of two lower courts that had struck the Washington Defense of Marriage Act (DOMA) as unconstitutional. Nineteen homosexual "couples" had challenged the Act. Essentially the court said today it is proper, in a democracy, for marriage to be defined by elected governmental representatives -- not by judges.

"Although marriage has evolved, it has not included a history and tradition of same-sex marriage in this nation or in Washington State," states the court's opinion. "It cannot be overemphasized that our state constitution provides for a representative democracy and that the people, who have consented to be governed, speak through their elected representatives." Continuing, the court refers to the democratically-adopted DOMA, saying "when no fundamental right or suspect class exists, the public consensus, as evidenced by legislation adopted after robust debate, must be given great deference."

And that, says Focus on the Family's James Dobson, is how it should be handled.

"This court has avoided becoming another example of judicial tyranny, properly recognizing that the state legislature had already defined marriage [in the DOMA] by a wide margin," Dobson says. "The five justices in the majority have respected the will of the people as expressed through their elected representatives, and have refused to usurp their role in the democratic process."

Attorneys with the American Family Association's Center for Law & Policy (CLP) concur. "The court is to be applauded for exercising restraint and leaving determinations about life's most fundamental institution in the hands of the people," says Brian Fahling, senior trial attorney at the CLP.

"They exercised judicial restraint, contrary to the expectations of virtually the entire watching world," echoes CLP chief counsel Steve Crampton, conveying his own surprise at the decision. "Washington has long been recognized as one of the most liberal states [and] the State Supreme Court has not been known for its restraint. All expectations were this was going to be another major blow to the defense of marriage -- but they have surprised us all."

According to Crampton, today's decision is legally sound. "They found that state constitution and controlling case law 'compel' them to answer, yes [the legislature] had that right [to pass the DOMA]," he says. "The long and the short of it is, this is a decision upholding the separation of powers doctrine, recognizing that any rewrite of marriage laws should not come from the courts -- but if it's to come at all, it must come from the legislature."

The Washington decision follows recent decisions in New York, Georgia, and Connecticut that have been favorable to traditional marriage. But Crampton cautions marriage traditionalists not to get complacent, because advocates of same-sex marriage are not giving up. In fact, he points out they met recently to concoct a 15-year plan to win over the public.

"Our side needs to recognize that this battle is far from over," the attorney says. "They are actually going out and attempting to target the grassroots citizens of America, trying to win over the moms and pops in Middle America with emotional pleas, putting forward their hand-picked kind of couple that will give the best, but a false kind of impression as to what same-sex marriage is all about."

To think the battle in defense of traditional marriage is over "would be the height of foolishness," he comments, "and would really be to snatch defeat from the jaws of victory."

Crampton points out there is no avenue for appeal in the Washington ruling since the lawsuit was based on state constitutional law.