Wash. Supreme Court published opinion — 961328.pdf

Citation: Wash. Supreme Court published opinion — 961328.pdf
Jurisdiction: Washington (state)
Source verification: official_capture_completeness_unverified
Original Source: https://www.courts.wa.gov/opinions/pdf/961328.pdf ↗

Related Parts of This Source

Full Text

1,784 chars

marry. Majority at 9. But it locates these rights exclusively in federal due process

cases that erroneously tie (and thereby limit) principles of antidiscrimination

recognized as fundamental in Washington. 4 Majority at 9-11 (citing Lawrence v.

Texas, 539 U.S. 558, 577-78, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Bowers v.

Hardwick, 478 U.S. 186, 215-20, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (Stevens,

J., dissenting); Obergefell v. Hodges, 576 U.S. 644, 663-65, 135 S. Ct. 2584, 192 L.

Ed. 2d 609 (2015)). Whether a statute violates due process is distinct from whether

a general rubric of reasonableness because the legislature must exercise its police power in
a reasonable way).
4
To be clear, I would welcome the recognition of marriage and the right to live free
from discrimination based on sexual orientation as fundamental rights of state citizenship.
But that is not what today’s majority does. The majority recognizes those rights as
fundamental rights under federal constitutional principles and subtly distances fundamental
rights of state citizenship, concluding only that there may be “the right to one’s sexual
orientation as manifested as a decision to marry.” Majority at 13. Importantly, the majority
does not address Andersen v. King County, 158 Wn.2d 1, 30-31, 138 P.3d 963 (2006)
(plurality opinion) (rejecting marriage equality as a fundamental right), overruled by
Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). The result
is a “fundamental right to marry” and a “fundamental right to sexual orientation” under the
due process clause of the federal constitution, but if the majority intends to protect these
rights under our state constitution, it should explicitly hold they are fundamental to state
citizenship.