Memo: On Courting and Gay Marriage

Some advice for the Washington Supreme Court as it weighs the Defense of Marriage Act and balances political expediency with legal principles.

To: The nine members of the Washington State Supreme Court

From: A rabid gay-marriage supporter

Keep your yaps shut until after Election Day in November!

You've made us wait 15 months already while you've considered whether the state's Defense of Marriage Act (DOMA), which defines matrimony as being between one man and one woman, is constitutional. So you might as well wait until after Tuesday, Nov. 7, if you are going to overturn DOMA's wretched bigotry (of course, I have no idea which way you plan to decide). As you are well aware, three of you—Susan Owens, Tom Chambers, and Gerry Alexander—are up for re-election in November, and if you scuttle DOMA before that election, probably all three of you will go down to defeat. It really won't matter whether Owens, Chambers, or Alexander joins a majority opinion striking down DOMA or dissents, the voting public will be furious and will lash out at whoever is convenient. Since Owens and Alexander have already drawn right-wing ideologues as opponents, and conservative groups have already started fund-raising to support stacking the court with their brethren, those two justices are especially vulnerable. Acting now could tip the balance of the court for years to come.

The backlash against legalizing gay marriage will be unlike anything you have ever experienced before. Expect rage. Expect death threats. Expect the unleashing of virulent prejudice at its most visceral. It will be like Brown v. Board of Education, except on a state level.

Most of the state's citizens are not ready for gay marriage, just like most of the country was not ready for racially integrated schools. Hatred of queer folk runs very deep and is fueled by a religious death cult, aka Christianity. Recently the Christian right and Tim Eyman failed in their effort to overturn the new law giving sexual minorities protection against discrimination in housing and employment. Some of my allies believe this means that homophobia is no longer a major force in Washington state. Don't believe it. The gay civil rights bill passed by just one vote in the state Senate. Respected pollster Stuart Elway showed support for gay marriage among Washingtonians has declined to 35 percent as of last December. Since D.C.'s bigot in chief has been recently holding Rose Garden events bashing same-sex marriage, the climate is worsening of late.

Not only will the state Supreme Court hang in the balance, but our state Legislature will be affected as well. This promises to be a Democratic year because Washingtonians have never embraced the Bush administration and its state-sponsored terrorism in Iraq. Currently the Democrats control the state House handily, 56-42, but their margin is smaller in the state Senate, 26-23, even closer really because a few conservative Democrats vote with the R's on many social and fiscal issues. Democrats have a good chance of picking up Senate seats where there are no incumbents, such as Kirkland's 45th District, South King County's 47th District, and Kitsap County's 26th District, or where incumbents are more conservative than their district, like state Sen. Luke Esser in Bellevue's 48th District or state Sen. Dave Schmidt in Snohomish County's 44th District. When the radical religious right goes into a complete frenzy after you knock off DOMA, the result could be Republicans holding onto these swingable state Senate seats.

Your decision could even help determine the outcome of control of the U.S. Senate. Warmongering Democratic Sen. Maria Cantwell is having trouble with her base. For some reason, rank-and-file D's aren't excited about being associated with torture, the murder of civilians, and pre-emptive war. She faces a very telegenic, likable former CEO of Safeco, Mike McGavick, who is eager to get back to Washington, D.C., and give more tax breaks to the superwealthy, continue the senseless mass violence of imperial occupation, start drilling in the Arctic National Wildlife Refuge, and make sure those faggots and dykes can't marry one another (although he puts everything a lot nicer than that). Cantwell has been a consistent supporter of gay rights, so your decision would give McGavick a great big stick to beat her over the head with. Since Cantwell's polling numbers do not look robust, your decision could determine whether the Democrats can take control of the U.S. Senate. So don't be hasty.

What's that you say? Judicial independence requires that you not concern yourselves with the dirty world of politics. Former state Supreme Court Justice Phil Talmadge says, "The impartiality of the judiciary is more important than politics." Seattle University law professor Julie Shapiro says, "It seems disingenuous to say [justices] are not political animals but at the same time judicial independence is worth hanging onto." Shapiro points out that we rely on judges ignoring public opinion in order to protect our civil liberties. Without judges who are determined to resist the tyranny of the majority, small unpopular groups would be subject to persecution. Says Shapiro, "Judges are antidemocratic. They base their conclusions not on the public will but on a reasoned analysis of current law and the Constitution. They are the counterweight to democracy."

Gee whiz, when she puts it that way, I guess your ability to proceed without regard to political reaction is a lot more important than my petty partisan concerns. This is really a very complicated decision you are wrestling with that involves the fundamental principles of our democracy.

So I encourage you to study the case law, read the state constitution thoroughly (again and again), and ponder your decision carefully and deliberately. Take your time. As much time as you need. Another six months is no problem at all.

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