Same-sex Marriage: Tradition or law?

Sunday, July 9, 2006

SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

The courts of last resort in two states ruled Thursday that their constitutions allow government to discriminate in issuing licenses on the basis of sexual orientation.

Or, as New York Court of Appeals Judge Robert Smith phrased it in that court's majority ruling, on the basis of "sexual preference."

Regardless of which way the Washington Supreme Court goes in its long-awaited decision on the constitutionality of our state's so-called Defense of Marriage Act, we trust the approach will be more enlightened than that. There is overwhelming scientific evidence that sexual orientation is a function of genetic predisposition, not personal preference.

The New York ruling that state government could limit the definition of marriage to that between one man and one woman came in a 4-2 decision. The Georgia Supreme Court was unanimous in its decision that the state's 2004 referendum in which 76 percent of voters approved a ban on same-sex marriage was constitutional.

Washington is one of six states with such cases pending. Three of our nine justices are up for re-election this fall, and some interest groups may push the same-sex marriage case as a campaign issue.

The New York opinion seemed to hinge as much on the court's notion of tradition as on its notion of the law. Smith said that because same-sex marriage was not deeply rooted in history and tradition, barring it did not violate fundamental rights and liberties.

The court's chief judge, Judith Kaye, argued for law over tradition in her dissent: "A history or tradition of discrimination -- no matter how entrenched -- does not make the discrimination constitutional."

The marriage license is issued by the state. We trust, then, that our justices have focused their deliberations on the simple question of whether Washingtonians will receive equal treatment under the law.

Soundoff (Read 327 comments)
Tell us what's on your mind.


Can and should the state constitutionally deny a license, permit or other government service on the grounds of sexual orientation?
24.8% Yes, it can and it should.	11.3% Yes, it can but it shouldn't.
62.9% No, it can't and it shouldn't.	1.0% No, it can't but it should.
Total Votes: 504