## Facts

- Washington enacted a Defense of Marriage Act (DOMA) providing that marriage is a civil contract between a male and a female and barring same-sex marriage licenses.
- In 2004, several same-sex couples applied for marriage licenses in King County and were denied solely because they were same-sex couples.
- The couples sued, alleging DOMA violated the Washington Constitution’s due process clause (art. I, § 3), privileges and immunities clause (art. I, § 12), and Equal Rights Amendment (art. XXXI, § 1).
- Trial courts in consolidated King County and Thurston County cases held the challenged DOMA provisions facially unconstitutional and ordered issuance of marriage licenses to same-sex couples.
- The State of Washington and county officials appealed; the Washington Supreme Court consolidated the appeals.

## Issues

1. Whether DOMA violated Washington’s due process clause by infringing a fundamental right to marry that includes marrying a same-sex partner.
2. Whether DOMA violated Washington’s privileges and immunities clause by denying same-sex couples the legal status and benefits of civil marriage.
3. Whether DOMA violated Washington’s Equal Rights Amendment by denying equality “on account of sex.”

## Decision

- The Washington Supreme Court reversed the trial courts and upheld DOMA in a closely divided decision.
- The court held that restricting civil marriage to opposite-sex couples did not violate state due process because the asserted right was framed as same-sex marriage and was not a fundamental right protected by substantive due process.
- The court applied rational basis review and concluded the legislature could rationally limit marriage to opposite-sex couples based on interests related to procreation and encouraging child-rearing by biological mothers and fathers.
- The court rejected the privileges and immunities challenge, declining to treat sexual orientation as a suspect or quasi-suspect class and finding the classification rationally related to legitimate state interests.
- The court rejected the ERA claim, reasoning the law did not treat men and women differently because both sexes were equally prohibited from marrying someone of the same sex and equally permitted to marry someone of the opposite sex.

## Legal Principles

- When a claimed substantive due process right is defined narrowly and is not deeply rooted in history and tradition, it is not treated as fundamental for purposes of heightened scrutiny under the Washington Constitution.
- If no fundamental right or suspect class is implicated, state constitutional challenges to marriage classifications may be evaluated under rational basis review.
- Under rational basis review, a court asks whether the legislature could have had a rational basis for the law, not whether the policy is wise.
- A restriction distinguishing opposite-sex from same-sex couples is not sex discrimination under Washington’s ERA where the law is construed as applying equally to men and women.
- Determining whether to extend marriage eligibility beyond opposite-sex couples was treated as a matter for the legislature or the electorate absent a constitutional command.

## Conclusion

The Washington Supreme Court upheld the state DOMA limiting marriage to one man and one woman, concluding it did not violate state due process, privileges and immunities, or the Equal Rights Amendment and that the decision to extend marriage to same-sex couples rested with the political branches and voters rather than the courts.


Andersen v. King County, 138 P.3d 963 (Wash. 2006)