Washington DOMA

A friend e-mailed this link to me a couple of weeks ago on the Washington Defense of Marriage Initiative. This group is protesting a case decided by the Washington State Supreme Court entitled Andersen v. King County. In the ruling, the Court argues that "DOMA [Defense of Marriage Act] is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents."

The Washington Defense of Marriage Initiative group (referenced in the link above) seeks to amend Washington State's marriage laws to limit marriage to those "who are capable of having children with one another," to "require that couples married in Washington file proof of procreation within three years of the date of marriage or have their marriage automatically annulled," to "prohibit divorce or legal separation when there are children," and to "make the act of having a child together the legal equivalent of a marriage ceremony." The group hopes that the absurdity of such proposed language will undermine the Washington Supreme Court's ruling in the minds of the people.

That such language is unthinkingly assumed to be absurd is another indication of how far American society and jurisprudence have swung in favor of individual rights. Perhaps this is good, perhaps it is not. Nevertheless, there was a time in our history when the main reasons for getting married were to have children, to order society, and to ensure the continuation of the community. Historically, marriage has been, first and foremost, a societal concern and a legally binding contract which society - and, by extension, the State - had an interest in promoting and defending.

There are very important questions attached to the current debate over marriage:

• What is the nature of marriage?
• Does the State have any interest in the state of marriage as a whole?
• Does the State have any business regulating the affairs of married people? What about affairs of unmarried people?
• Should the State be able to limit marriage to certain types of couples?
  
• Is marriage that is defined in the light of individual rights still marriage?
• Can society survive without marriage as it has been?

Whatever the answers to these questions, it would be disastrous for the courts to try to answer them for society. Roe v. Wade was damaging enough, but if the courts continue to push into the realm of legislative concern and short-circuit public debate, the reverberations could destroy our constitutional foundations.

As strange as it might seem, politics is our only hope.