JUDGE NOT, UNTIL YOU'VE HAD TO JUDGE GAY MARRIAGE: Susan Nielsen

[In which judges who impose SSM are basing their beliefs on personal experience and greater knowledge and deep noblesse oblige, as philosopher-kings ought, whereas those of us who oppose SSM probably have never even met a person who deviated by a hair from the Desi 'n' Lucy standard of sexual orientation. ...Um, right, I probably shouldn't post when I'm in a bad mood. Consider this op-ed growled-at. --Eve]

...But the truth is, the real cultural divide has little to do with judges. The true divide is between people who've had to confront gay marriage legally or personally, and people who haven't.

Judges simply have to do it in public, in writing, before the rest of mainstream America does. As King County Superior Court Judge William Downing attests, that's not comfortable.

He didn't even want the case.

I called Downing in Seattle last week after he struck down the state's Defense of Marriage Act, a 1998 law that says marriage must be between one man and one woman. I was eager to ask a real live judicial activist what it felt like to foist his big-city views on an unsuspecting nation.

Downing, a respected former prosecutor, set me straight. He was randomly assigned the case. At least 25 other judges in King County could've gotten it, but his number came up. "I was not at all delighted," he admitted.

He discloses this discomfort in his ruling as well. The issue of gay marriage "is, to be frank, a matter too big to be addressed to a lone individual," he wrote. ". . . (This) author would like nothing better than to stop at this point and, with a warm and sincere pat on the back, to send all parties off to the State Supreme Court or the State legislature or both," he wrote.

But he couldn't. So he did his job. He examined gay marriage through the cool and rational eyes of the law. He listened to the stories of the gay people seeking help in his courtroom. He set aside any biases about homosexuality or religion or family.

And he came to this conclusion: Marriage is a civil contract between two adults. It is often sanctified in a house of worship, but the license itself comes from the government, as do the hundreds of accompanying rights and obligations regarding health care, taxes, inheritance, child support, divorce and more.

It is arbitrary for the government to deny gay people the right to marry, Downing concluded.

The conclusion is as audacious today as the idea, two generations ago, that people of different races should be free to marry.

The Washington Supreme Court will review this case before any marriage laws are changed. Still, Downing was roundly condemned by anti-gay-rights groups. In Seattle newspapers the next day, anti-gay-rights leaders called his ruling "a breathtaking leap" and a "shameful power grab by the judiciary."

Some vowed to follow Missouri's lead and amend Washington's constitution.
The backlash is disheartening for gay people and their families and supporters. But it follows the pattern of many civil rights struggles, said Evan Wolfson, a leading gay-rights attorney and author of "Why Marriage Matters: America, Equality, and Gay People's Right to Marry."

A group of people feels treated differently and unfairly under the law. When they can't get help from their legislators or neighbors, they turn to the courts. Case by case, judges begin to agree they deserve the same constitutional protections as everyone else.

A patchwork of rights grows. Public fear and resentment grow, too.
"Some states move toward equality, while some states resist or even regress," Wolfson said Friday while in Portland. "I think this week demonstrated that patchwork."

Wolfson said he expects voters in several states to approve constitutional bans on gay marriage this fall. Oregon, he said, may be one of those states, -- even though 3,000 same-sex couples got married in Multnomah County this spring and the sky didn't fall. ...

This is no judicial activist on a frothing rampage. This is a man who tried to look gay people in the eye and give them a legal reason why they had to go through life alone, without the protections of marriage.

He couldn't do it.

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posted by Eve at 9:17 PM | link

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