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Wednesday, August 2, 2006 - Page updated at 12:00 AM

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Guest columnist

State Supreme Court: "Not that there's anything wrong with that"

Special to The Times

Why do I get the feeling that I am stuck in an infinite rerun loop of that "Seinfeld" episode aired 13 years ago and aptly titled "The Outing"?

You fans know the one I am talking about. With Elaine's encouragement, George and Jerry ensnare themselves in a web of double entendres andstereotypes all because they try to tickle the fancy of an eavesdropper at the diner with the notion that they are a gay couple.

Of course, it turns out that the eavesdropper is a reporter for the New York University student newspaper who wants to interview Jerry and before you know it the story is picked up on the AP wire.

George can't believe it: "Now everyone's going to think we're gay!" Jerry quickly adds, "Not that there's anything wrong with that ... "

The episode is peppered with the phrase as each parent, each friend, each acquaintance, expresses shock but apologetically adds the obligatory, "Not that there's anything wrong with that," and, "Some of my best friends are gay."

That's where we seem to be at this particular moment of our cultural history. Reading Justice Barbara Madsen's opinion last Wednesday deciding Washington's marriage-equality challenge, one is struck by what has become a familiar apologetic refrain in other similar opinions elsewhere.

Both before and after upholding Washington's statute denying gays and lesbians the right to marry, the state Supreme Court felt compelled to tell us "that our decision is not based upon an independent determination of what we believe the law should be."

In other words, if we were in charge, we would probably, quite possibly, well maybe, do things differently.

However, the opinion overlooks the fact that the court is indeed charged with doing things differently where fundamental rights are concerned or when discriminatory animus motivates legislative action. And the opportunity to do so was there.

The judicial function is almost never characterized by the application of bright-line rules that dictate clear results. It is one of interpretation, of shrinking or broadening elastic concepts in response to the cases placed before it. This is especially true in the area of constitutional analysis where admittedly abstract concepts like "rational basis" and "fundamental rights" take hold.

Multiple legal theories waited like empty vessels for the court to fill with reasoning leading to a different result.

For example, everyone knows that often the answer to the question is dictated by how it is asked. So, if the court decides to ask, "Does our history and tradition dictate that there is a fundamental right to gay marriage?" the answer obviously is going to be no. However, if the court asks instead, "Does everyone possess the fundamental right to marriage?" the answer is a more generous yes. The court can ask either question. The court can get either answer.

Another example: How does one characterize what is rational? Is it rational to withhold marriage from gays and lesbians, some of whom do have children, and allow it for heterosexuals, some of whom will never have children whether by choice or biology, in the name of furthering procreation and protecting all children?

Is it ever rational to enact a law like the Defense of Marriage Act that is motivated by negative feelings toward a minority group? U.S. Supreme Court precedent would have answered "no" to that question.

Yes, there are arguments that could counter each of these questions. And, in fact, those were the arguments that won the day on Wednesday. But the fact is that the other arguments, those raised by the dissents on the court, just as easily could have prevailed. They did in Massachusetts.

Scholars argue about whether law, with its grindingly slow pace, lags behind society in reflecting its views. Or, whether at particular moments in history, it pushes society forward by forcing it to recognize and respect the rights of the unpopular and disenfranchised, those who will have a hard time securing their rights in a democracy controlled by the majority.

In this case, it may be that the many opinions — the main opinion, the concurring opinion, and the three dissents — precisely reflect where we are as a society on this issue. Ambivalent. Not quite comfortable with gay and lesbian couples sharing in the mainstream. Almost there, but really only ready to affirm the denial of participation, hope for someone else with power to change it, and say quickly and parenthetically, "Not that there's anything wrong with that ... . Some of my best friends are gay."

Lisa A. Kelly is a professor of law and director of the Children and Youth Advocacy Clinic at the University of Washington.

Copyright © 2006 The Seattle Times Company

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