A tenuous decision on gay marriage

The lead opinion signed by justices Barbara Madsen, Charles Johnson and Chief Justice Gerry Alexander in the Supreme Court's ruling to uphold a gay-marriage ban treads water from a state constitutional law standpoint.

The most important conclusion in that decision is that the state constitution's Article I, Section 12, or privileges and immunities clause, does not extend protections to minority groups, but instead was meant by the constitution's 1889 drafters to protect the majority against the Legislature's grant of exclusive privileges to special-interest groups (e.g. big corporations, especially railroads).

That opinion then said that when it comes to protecting minority groups such as gays and lesbians, our court should look for guidance to the U.S. Constitution's Equal Protection Clause in the 14th Amendment. That federal constitutional provision has not been interpreted in such a way as to protect gays and lesbians from discrimination in the marriage arena.

Because the lead opinion was signed by only three judges, it is difficult to say how much long-term effect this rather cautious decision will have in terms of the development of state constitutional law. All three of the judges who signed the lead opinion tend to be advocates of interpreting Washington's constitution differently than the federal courts interpret the U.S. Constitution.

Justice Richard Sanders, who signed a concurring opinion in the case, also supports an independent and robust approach to interpreting the state constitution. It is interesting to see four judges who often take that independent approach, lining up with the federal courts' Equal Protection analysis in this particular case.

Spitzer is an affiliate law professor at the University of Washington, who teaches state constitutional law. He ran for a seat on the state Supreme Court in 1998.