Not a Moral Issue? Judicial
Nonsense in Washington State
by Dr. R. Albert Mohler Jr.
September 13, 2004
Thurston County Superior Court Judge Richard Hicks struck down Washington
State's ban on same-sex marriage, the nation was presented with
yet another reminder of the real and present danger posed by an
activist judiciary now out of control. In his decision, Judge Hicks
declared that Washington's 1998 Defense of Marriage Act defining
marriage as the union of a man and a woman was unconstitutional
because it denied a "fundamental right" to some persons
that was available to others. His decision, handed down on September
6, follows another Superior Court ruling similarly nullifying the
state's prohibition on same-gender civil marriage, and will be reviewed
by the state's Supreme Court.
Once again, a judge used sociological analysis as
a disguise for his own political and moral judgment, and finally
cloaked his decision in the convoluted language of legal evasion.
Citing Massachusetts' Goodridge case as a precedent, Judge Hicks
joined the chorus calling for legal recognition of same-sex relationships.
In a 38-page ruling, Judge Hicks wrote: "The clear intent of
the Legislature to limit government approved contracts of marriage
to opposite-sex couples is in direct conflict with the constitutional
intent to not allow a privilege to one class of a community that
is not allowed to the entire community."
Going beyond that argument, Judge Hicks found that
homosexuals are a protected class under Washington State's Constitution,
a designation previously granted only to groups marked by immutable
characteristics such as race or gender. The finding that homosexuals
are now a "suspect class" extends considerable legal protections
to homosexuals as a group. Just last month, King County Superior
Court Judge William Downing had declined to declare homosexuals
a protected class, citing precedence in federal law.
A close look at Judge Hicks' written decision reveals
the radical nature of this ruling. The judge began by arguing that
the state's constitution grants its residents liberties and protections
not included in the U.S. Constitution. According to the judge, "Our
issue is simple. Do the state or federal Constitutions, as they
exist today in amended form, prohibit the Washington Legislature
from enacting a valid civil law for all the people of this state
that authorizes marriage between adult couples of opposite sex and
prohibits marriage between adult couples of the same sex?"
The judge found that the legislature's intent was
crystal clear. "It is clear that there is no question of legislative
intent. . . . The legislature's intent is to prohibit same-sex marriage
as contrary to our civil law, regardless of any other basis, religious
or societal, that may condone such civil unions."
In an interesting twist, Judge Hicks cited Washington
State's Equal Rights Amendment in making his decision, citing its
language to the effect that "equality of rights and responsibility
under the law shall not be denied or abridged on account of sex."
We should note that, when the Equal Rights Amendment [ERA] was debated
at the national level, this is precisely the trajectory its proponents
denied would ever appear. Judge Hicks used this provision in order
to argue that denying a woman the right to marry another woman,
or a man the right to marry another man, was a violation of the
Equal Rights Amendment.
Further into his argument, Judge Hicks announced
his finding that marriage "is a fundamental right." As
a "fundamental right," marriage was thus declared to be
the equal property of all citizens, regardless of history and precedent.
Next, Judge Hicks cited the Goodridge decision by the Supreme Judicial
Court of Massachusetts--the decision that led directly to the legalization
of same-sex marriage in that state. "The point that must be
addressed is that the government itself creates a civil marriage,
and the government is a partner in all civil marriages. Based on
their research and reasoning, the Massachusetts Supreme Court, reviewing
many of the same cases reviewed here, concluded that the ban on
same sex marriage did not meet the 'rational basis' test for either
due process or equal protection. They found that the same sex marriage
ban 'works a deep and scarring hardship on a very real segment of
the community for no rational reason'."
Of course, this redefines "rational basis"
without regard for moral argument, constitutional history, or the
universal understanding of marriage as a heterosexual institution.
Judge Hicks cited the State's argument that partners
in a marriage are "expected to engage in exclusive sexual relations
with children the probable result and paternity presumed."
With sweeping condescension, Judge Hicks declared this understanding
of marriage--the very understanding central to civilization itself--as
a "Lilliputian" view, referring to Jonathan Swift's famous
satire Gulliver's Travels. Thus labeling the majority of Americans
as small-minded, the judge went on to declare Swift's book "an
allegorical work that is as important today as when it was written."
The judge cited reproductive technologies such as
artificial insemination as means whereby same-sex couples can "bear
children" and insisted that same-sex couples can now adopt
children with the state's approval. "No one argues that heterosexual
couples must have children, even if they are able, or that divorce
is not a common experience for children of heterosexual marriages,"
declared the judge, arguing that heterosexual marriage offers no
stable basis for child-rearing or the family.
In a bizarre section, Judge Hicks belittled an amicus
brief that had argued that "the state evolves out of and depends
for its stability upon stable families," and continued with
the assertion that "new generations must be produced for society
to perpetuate itself." Rejecting that argument, Judge Hicks
went on to editorialize on his personal and unsubstantiated concern
about population control. "On the issue of the need to produce
children let us leave aside the relationship between unbridled growth
of the world's population in relation to the world's resources to
sustain the population and let us look narrowly only at home."
Judge Hicks got to the heart of the matter when
he single-handedly declared that the word "family" no
longer has an objective and defined meaning. "For at least
two generations we have understood 'family' as something more than
a man mating with a woman to have a child. A single parent is a
family. Grandparents raising grandchildren without the help of the
parents is a family. Adults giving foster children a home are a
family. Same sex couples who adopt children are a family. Opposite
sex couples who adopt children are a family. Single parents with
children who marry each other bring into being a new family. A childless
couple, same sex or opposite sex, can be a family. An older child
raising his or her siblings is a family. There are other examples.
Clearly, it seems to this court, a same sex couple, especially a
same sex couple with adopted children, is a family. Is this the
kind of family that the government has an interest in making more
In this offering of amateur sociological analysis,
the judge ignored the fact that virtually every example he cited--other
than same-sex relationships--is defined as rooted in the heterosexual
structure of marriage and the traditional understanding of parenthood,
even if these relationships fall short of the ideal. In the name
of equality, Judge Hicks will destroy civilization's most central
Nevertheless, the most bizarre and troubling section
of Judge Hicks' decision came in its final pages. Turning the very
notion of law on its head, Judge Hicks declared: "For the government
this is not a moral issue. It is a legal issue. Though these issues
are often the same, they are also quite different. The conscience
of the community is not the same as the morality of any particular
class. Conscience is what we feel together as one community. Conscience
makes us one people. What fails strict scrutiny here is a government
approved civil contract for one class of the community not given
to another class of the community. Democracy means people with different
values living together as one people. What can reconcile our differences
is the feeling that with these differences we are still one people.
This is the democracy of conscience."
That is the language of legal and moral irrationality.
Judge Hicks simply declares, based on his personal assertion, that
same-sex marriage is "not a moral issue" for the government.
Instead, he insists that this is "a legal issue" alone.
Can he possibly be serious in making such a claim?
The strict and artificial separation of law and
morality is part and parcel of the modernist experiment and the
postmodern worldview. Of course, it is also manifest nonsense. Every
statute, indeed every letter of the law is filled with moral meaning
and moral significance. A law as simple to understand as a parking
regulation comes down to the morality of protecting citizens and
allocating the just use of common property. More to the point, a
law against murder is not a statute intended to identify murder
as a procedural inconvenience, but rather to declare the society's
conviction that the taking of innocent human life is wrong and thus
Of course, Judge Hicks must possess sufficient intelligence
to understand the imbecility of his argument. That's why he had
to follow his declaration with the awkward explanation that, "Though
these issues are often the same, they are also quite different."
When a judge or politician declares, "We cannot legislate morality,"
we can count on the issue at hand to be related to sex and personal
behavior--not to murder, embezzlement, or bank fraud.
Capping off this legal atrocity is a corrupted understanding
of conscience. According to Judge Hicks, "Conscience is what
we feel together as one community." If that is all there is
to it, there would have been no abolition of slavery, no civil rights
movement, and no higher law than what the current moral opinion
of a people will sustain. By that standard, who can question the
"conscience" that allowed ordinary German citizens to
participate in the death industry of the Holocaust?
This ruling by Judge Richard Hicks adds one more
irrefutable piece of evidence to the argument that a Federal Marriage
Amendment is absolutely necessary if we are to have any chance of
protecting marriage throughout this nation. This tragic decision--available
for all to see in written form--is a warning of even worse things
to come, if an activist judiciary is not stopped in its tracks.
When a judge, sworn to uphold and interpret the
law of the land, addresses an issue like same-sex marriage and declares,
"this is not a moral issue," nothing less than civilizational
collapse appears fast on the horizon.