In the Matter of Andersen, Part I

I did sit down and read the opinions, and Dale Carpenter's comments, over again, in full. and I wasn't so far off my original assessment: the plurality opinion, with concurrences, is so far off base as to be obviously grasping at any means, no matter how transparent, to avoid upsetting the status quo. (Or, given the justices' obvious discomfort with the decision, perhaps it's more a matter of avoiding the reaction of the rabids, should the court find as the Washington constitution actually requirs.) One can see, by the beginning of the third paragraph, that Justice Madsen's basis for this decision is beyond weak. "[W]e have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government." This is a recurring theme and to me (as well as to the dissenting justices in this case) marks nothing so much as an abdication of the court's responsibility for judicial review. (In fact, Justice Chambers wrote a separate dissent addressing just this issue.)

The plurality goes on to note that its decision "accords with the substantial weight of authority from courts considering similar constitutional claims," although the opinion is notably lacking in citations to support this contention. (I, a layman, am aware of decisions in Hawai'i [ Baehr v Lewin, in which the court found that Hawai's marriage law violated the constitutional rights of plaintiffs], Alaska [Brause et al. v. Bureau of Vital Statistics, in which the court granted summary judgment for the plaintiffs and required the state to present compelling arguments for denying a marriage license; mooted by a constitutional amendment], and Vermont [Baker et al v State of Vermont (PDF), in which the court found Vermont's marriage laws unconstitutional but instructed the legislature to develop a remedy], as well as Goodridge in Massachusetts, that arrived at the opposite conclusion. I seem to remember a couple of cases that found against same-sex marriage, but I haven't managed to locate any citations.) These cases are cited later in the opinion, in relation to the suspect class question, but the grounds on which they are referenced seem to undercut the courts determination that gays and lesbians do not constitute a suspect class (although the opinion rightly notes that the question is controversial and that evidence supporting such a designation was not presented).

The plurality also seems to think that, because in both Alaska and Hawai'i constitutional emendments were rushed through on a wave of hysteria, those courts' findings are somehow not particularly valid.

The court's analysis is the least rigorous possible, which in itself raises questions as to the court's willingness to actually evaluate the issues in this case. My disagreements are what might be expected: the question is very narrowly constructed, and in my opinion (as well as that of the dissenting justices) is the wrong question. It's the Scalia stand-by (stated even more strongly by Justice Johnson in his concurrence): the question is not whether the constitution guarantees the right to same-sex marriage, but whether the constitution guarantees the right to marry the person of one's choice and whether and to what degree the constitution allows state intrusion into that decision. This is something that justices Fairhurst and Bridge address quite cogently and solidly in their dissenting opinions.

My bottom line is simply that the plurality opinion by Justice Madsen and concurrence by Justice Johnson are marred by circular reasoning, too narrow an interpretation of the question, overly deferential attitude toward the legislature, and in some instances outright misstatements of fact (Johnson pooh-poohs the idea that the Washington state DOMA was motivated by animus, althoough Justice Chambers is able to cite extensively from public testimony and the legislative record of the debate to demonstrate that that was, indeed, the case.)

In terms of the discomfort level of the court with this decision, that is fairly obvious, not only by the tone of the plurality opinion, but by the fact that Chief Justice Alexander submitted a separate, one-page concurrence specifically to note that nothing precludes the legislature from redefining marriage.

Justice Johnson's concurrence deserves separate commentary, because it is so bad that one can hardly believe it was drafted by a member of Washington's high court rather than the Washington office of Focus on the Family. More on that one later.

I had intended to do a more detailed deconstruction, but it's really not necessary -- the dissents have done it for me, and quite brilliantly. I'll treat them, as well.