Does Sex Matter? Washington's Defense of Marriage Act under the Equal Rights Amendment of the Washington State Constitution

Authors

Thomas C. Schroeder

Abstract

Washington State's Defense of Marriage Act (DOMA) defines marriage as a civil contract between a male and a female and explicitly bans marriages between members of the same sex. Yet the Equal Rights Amendment (ERA) to the Washington State Constitution prohibits laws that classify by sex. In the three decades since the enactment of the ERA, the Washington State Supreme Court has recognized only two narrow exceptions to the ERA's ban of sex-based classifications: laws based on anatomical differences between the sexes and laws created to mandate equality between men and women. Whether the DOMA effects a sex-based classification and therefore violates the ERA presents the Washington State Supreme Court with an issue of first impression. When analyzing the DOMA, the Washington State Supreme Court should apply absolute scrutiny, a level of scrutiny which exceeds that applied by other courts that have found laws creating sex classifications to be sex discrimination. In so doing, the court should find that the DOMA results in a sex-based classification that is prohibited by the ERA and conforms to neither of the ERA's two narrow exceptions. As such, the Washington State Supreme Court should hold that Washington State's DOMA effects a sex-based classification expressly prohibited by the Washington State Constitution.

First Page

535

Recommended Citation

Thomas C. Schroeder, Notes and Comments, Does Sex Matter? Washington's Defense of Marriage Act under the Equal Rights Amendment of the Washington State Constitution, 80 Wash. L. Rev. 535 (2005).
Available at: https://digitalcommons.law.uw.edu/wlr/vol80/iss2/8