Pro-DOMA judge becomes WA Chief Justice
 

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posted Friday, January 15, 2010 - Volume 38 Issue 03

Pro-DOMA judge becomes WA Chief Justice
by Mike Andrew - SGN Staff Writer

Barbara Madsen, the author of the Washington Supreme Court opinion upholding the state's ban on same-sex marriages, was sworn in as chief justice of the court on January 11.

In her decision in Anderson v King County, Madsen put forward the controversial claim that the state may prohibit same-sex marriages because it has an interest in fostering procreation. She also asserted that children are best raised by their biological parents.

"The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are reared in homes headed by children's biological parents," she wrote.

Madsen also publicly questioned whether homosexuality is an immutable trait like race or sex. "Laws challenged on the basis of race or sex discrimination are generally subjected to more searching review," stated Justice Madsen.

A majority of her colleagues agreed with Madsen as to the outcome, but not with her legal reasoning. The 5-4 split decision featured six separate written opinions.

The most-signed opinion was Justice Mary Fairhurst's dissent. It was signed by all four dissenting justices.

In a stinging rejection of Madsen's argument, Fairhurst wrote that the justices in the majority "condone blatant discrimination against Washington's Gay and Lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests."

Joining Fairhurst in her dissent were Justice Tom Chambers, and the two remaining women justices, Susan Owens and Bobbe Bridge.

Among Madsen's other notable cases, the most notorious is perhaps State of Washington v Bryan Montez James (2007), in which she joined four other justices in ruling that police may impersonate attorneys in order to obtain evidence from defendants which they would be encouraged to believe was privileged.

Madsen is married and has procreated. She has four children.

Madsen replaces Gerry Alexander, who stepped down as chief justice prior to retiring from the Supreme Court next year. Alexander was re-elected to a six-year term in 2006, but is required to retire at the age of 75 before the end of his term. Alexander voted with Madsen in the Anderson case.

New chief justices are elected by their colleagues on the court.



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