As you read this, we are more than five weeks removed from the Washington Supreme Court's unfortunate decision in the Andersen case. The editorial responses have all been published and the rhetorical furor already has died down. It will not do to fan those flames anew.
So, we will not dwell here on what one renowned court watcher has termed the plurality's "remarkable feat" of punting to the Legislature on this important issue; "remarkable" because of the authoring justice's long-standing position of refusing to defer to that body on virtually any other point. Nor will we linger on such dogmatic utterances that marriage between a man and a woman - but not between gay couples - advances the "legitimate state interest" of "further[ing] procreation, essential to survival of the human race."1 Such statements merely echo and legitimize the sentiments of the likes of Ohio gubernatorial candidate Ken Blackwell, who in a stump speech denouncing gay marriage said, "The notion that a same-sex marriage can carry out the function of procreation or replenishing the human race defies not only human logic but barnyard logic."2
Let's not worry ourselves with the fact that many same-sex couples reproduce in exactly the same fashion as many infertile opposite-sex couples. Or that we don't need marriage between a man and a woman to further procreation - we have enough of that already; let's worry about global warming, shall we. Or that many, many, many children, including the children of same-sex couples, live happy and healthy lives even though they are not raised by both (or either) of their biological parents.3
Rather, there are other words far more important than what appear in the Andersen decision. They are, in fact, some of most famous words ever put to paper or uttered in the history of this country; among few equals, "a seminal statement of America's abiding principles."4 Thomas Jefferson wrote them down in 1776: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."5
Jefferson was a somewhat notorious slave owner, as history has proven out. Ignoring the fact that women were not necessarily included in this statement, Jefferson meant what he said, and everything he wrote did not make it into the final version. Jefferson's initial draft of the Declaration also "included language that described the slave trade as the perverse plot of an evil English monarch designed to contaminate innocent colonists."6 But the realities of compromise, even then, prevailed.
Although such a repudiation of slavery captured the shackles-shaking spirit of the Revolution, the deletion of its outright condemnation in the Declaration by an otherwise daring Continental Congress was only the first of many such accommodations to human bondage over the next 80-plus years and set the fledgling nation on the path of constitutionalizing one man's/one race's subjugation of another - a human stain that would not be wiped clean (if then) for another 190 years.
Did you know that the U.S. Constitution, adopted in Philadelphia in 1787 and subsequently ratified by the first 13 states, actually endorsed the institution of slavery without ever mentioning the word? No, it's not in Article I, Section 2 where slaves, i.e., "all other persons" besides "free Persons," were counted as three-fifths of a person for purposes of determining representation in the House. Actually, it's in the first clause of Article 1, Section 9, which says (to this very day, it's still in there):
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Read between the lines: they're talking about the slave trade.
And, just in case anybody missed it the first time, it's there again in Article V, which prohibits any constitutional amendment prior to 1808 affecting "the first and fourth Clauses in the Ninth Section of the first Article." In short, it was hands off slavery until 1808.
The implicit but thoroughly understood sectional agreement, which the Sectional Compromise at Philadelphia merely underlined, was that slavery, while anomalous within the framework of republican ideology, was a self-evident reality that had been allowed to coexist alongside Jefferson's self-evident truths.7
Less than three short years later, Congress had barely sat down to its first cup of coffee when in February 1890, two Quaker delegations sent tremors through the House when they called for an immediate end to the slave trade. But thanks to James Madison's backroom brokering, the likes of which had yielded the Sectional Compromise at Philadelphia, the end result was a House resolution that - given a "woefully weak" Supreme Court and the absence of judicial review - adopted a virtual constitutional amendment, "a landmark decision prohibiting any national scheme for emancipation."8 The resolution that passed the House provided:
The Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the States; it remaining with the several States alone to provide any regulation therein, which humanity and true policy may require.9
This constitutionalization of slavery was fueled by rhetoric that rings familiar today in the debate over same-sex marriage. Rep. James Jackson from Georgia quoted from the Bible to support the institution of slavery. William Loughton Smith of South Carolina railed against the calamity that would befall the country if the slaves were set free:
If the blacks did not intermarry with the whites, they would remain black until the end of time; for it was not contended that liberating them would whitewash them; if they did intermarry with the whites, then the white race would be extinct, and the American people would all be of the mulatto breed.10
It was just such paranoia and prejudice that led to the miscegenation laws that stayed on the books in many states for almost 100 years after the Civil War and which today draw the closest comparison to bans against same-sex marriage.
Citizens in a number of states have approved constitutional amendments banning same-sex marriage. Given some of the sentiments here in Washington, we may not be far behind, and the state Supreme Court has now said it is constitutional to discriminate against gays and lesbians, i.e., to deny them a right available to those of us who are not gay or lesbian.
Some are likely to question - strongly - a comparison of a constitutional endorsement of slavery in the 1780s and 1790s with constitutional bans of same-sex marriage today. But the comparison made here is not between how slaves were treated then and how gays and lesbians are being treated now. The comparison is with respect to how such treatment has been legitimized; separation of and discrimination against any class, for any reason, and to any degree should not be tolerated.
The decision in Andersen is state-endorsed discrimination that betrays Jefferson's "seminal statement of America's abiding principles" and that, according to the court, finds its nesting ground within the bosom of the state constitution. As the vile institution of slavery once found protection within the historic and revered words of the U.S. Constitution, the oppression of a class of citizens, who find themselves singled out merely because they are "different," once again finds shelter where none should be offered.
Gene Barton is the editor of the Bar Bulletin. The views expressed here are those of the author. They do not necessarily reflect the views of the King County Bar Association, its Board of Trustees or its members. Responses to this Commentary are welcome and will be published in the October issue of the Bar Bulletin, space allowing.
1 Andersen v. King County, Docket No. 75934-1, Plurality Opin.
2 Frances Fitzgerald, "Holy Toledo," The New Yorker, July 31, 2006, at 28Ð29.
3 It also should be noted that the KCBA Board of Trustees last November approved a policy statement endorsing same-sex marriage: "Two people of the same sex should have the right to marry under state law and to undertake the legal responsibilities and enjoy the legal protection associated with civil marriage under the law."
4 Joseph J. Ellis, Founding Brothers: The Revolutionary Generation at 122 (Vintage Books, 2002).
5 Thos. Jefferson (and 55 friends), The Declaration of Independence, Philadelphia, PA, July 4, 1776.
6 Ellis at 88Ð89.
7 Id. at 98.
8 Id. at 116.
9 Id. at 117Ð18.
10 Id. at 100.
