Friday, September 10, 2004

Washington Gay Marriage, Part 2

Another Washington state court has struck down the state's prohibition of gay marriage. The court in Castle v. State echoed a previous ruling by a seperate state court in Anderson v. Sims.

While overall, I preferred the rhetoric of the Anderson opinion, there was some good stuff to be found here too.

Strange as it seems, today the biological father and biological mother need never meet. One may need a government license to get married but no license is required to father or birth children. The traditional stable heterosexual union for the purpose of having a child does not need government approval and never has. But if the government is going to require that the government approve a civil contract, and approve several benefits that flow from such approval, then it must take care to treat all its citizens in an equal way. Even more important, just as the government is a real, but not named, party to the contract, any children that result are real,
but not named, parties to the contract. Same-sex couples can have children through artificial insemination and same-sex couples can adopt children all with the government’s approval. Where is the protection for these children?

Do we really need a study to understand that children thrive better in a stable family? When children lose family stability we go to great lengths through the use of foster families and adoption to bring them back into a stable family situation. When married parents divorce we take great care to do what we can to provide for the children’s loss of stability in the ‘broken’ family that results. On another level, even without children, surely stable couples as well as families are the foundation for a democratic stable society. If these observations of family are correct, and if the defendants are correct that stable families are the foundation of a stable state, then the question becomes, not what counts as “marriage,” but rather what counts as “family.” If the reason to protect marriage is the need for stable families then we need be clear as to what counts as a family upon which this stability rests. It seems to this court that stable families are a legitimate and compelling state interest for the benefit of the entire community. We, the community, need to come to know ourselves. We need to have the fortitude to see who we are and accept ourselves as we are. If we look at ourselves, and at our neighbors, what do we see that counts as a “family?”

For at least two generations we have understood “family” as something more than a man mating with a woman to have a child. A single parent is a family. Grandparents raising grandchildren without the help of the parents is a family. Adults giving foster children a home are a family. Same sex couples who adopt children are a family. Opposite sex couples who adopt children are a family. Single parents with children who marry each other bring into being a new family. A childless couple, same sex or opposite sex, can be a family. An older child raising his or her siblings is a family. There are other examples. Clearly, it seems to this court, a same sex couple, especially a same sex couple with adopted children, is a family. Is
this the kind of family that the government has an interest in making more stable? If an opposite sex couple without children is a family then on what basis is a same sex couple without children not a family? The community support that provides additional stability to the private vows of commitment of any couple comes into being because the community understands that this is in the best interest of the entire community. The community support for the private vow is to allow the creation of a civil contract. That is what marriage is. It is a civil contract approved by the community that carries with it many obligations, many benefits, and many burdens.


Both cases will almost certainly be consildated for hearing by the state Supreme Court. However, the ball is rolling folks.

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