Judge Downing Sets A Tone For All To Follow
P. Scott Cummins © 2004 The Urbane R
(On August 4, 2004 King County Superior Court Judge William Lansing Downing issue a memorandum opinion finding that same sex couples have a legal right to be afforded all of the rights and privileges given male-female couples – and therefore should be allowed to be legally married in this state.)
Bill Downing has accomplished in only twenty six pages what every judge in other states who attempted it, apparently, could not. He establishes clearly and firmly how we are all benefited by making marriage about family, not gender. With a memorandum opinion crafted with care and concern for the sensibilities of all parties, and without the agenda-laden enthusiasm of activist judges in other states, Judge Downing has set forth community standards. And made law – in a ruling which I predict will not only stand to appeal – it will soar to praise.
This is the highest calling for a judge – making sensitive decisions firmly and clearly. Years ago I worked as a court bailiff at King County Superior Court. Someone did not have to work there very long to see the heart-breaking injustice of a society trying to ignore the obvious: same sex couples denied the benefits of rights and remedies afforded under Washington’s community property, inheritance and employment laws. Straight couples, when surfing the waves of the near-fifty percent divorce rate - sent to the streamlined, informal and dialogue-provoking world of the family law court commissioners. On the other hand, to this day, gay couples instead compelled to navigate the “perfect storm” of formal civil court rules and trial procedure with their ‘community’ property disputes. To many of us toiling in chambers on behalf of judges, the compelling injustice of this situation was obvious – and smacked of social ills outlined by Charles Dickens and Thomas Hardy in the nineteenth century.
In a King County Prosecutors office brimming with diverse talent hired by Norm Maleng, the status of Bill Downing as a ‘heavy hitter’ was beyond question when appointed to the bench in 1989. Prosecuting some of the most egregious murder cases in our state’s history will do that for one’s reputation. I had never met Bill Downing before, when as an experienced bailiff, I received the assignment of working for him in his first ever civil case. To add to the unsettled atmosphere, that case involved legendary trial lawyer (later Washington State Bar Association President, and now Washington Supreme Court Justice) Tom Chambers on behalf of the plaintiff. Downing, fresh from Judicial College, had never really handled much in the way of civil cases as a lawyer. And now his first assignment as a judge was a personal injury case! As is every trial judge, he was concerned with the specter of ‘error’ bringing rebuke from the appeals court. As a rookie judge on his first case, he was nervous about rulings on motions, and properly formatted jury instructions. He need not have worried: Bill Downing’s ‘growth’ into the job was instantaneous.
Fifteen years later, and now an experienced trial court judge, Bill Downing has ruled on gay marriage - crafting a decision that weighs civil rights, community standards and compelling state interests. “When the court is asked to sit in judgment of a law,” Downing states in his memorandum opinion, “it is not to consider whether, in its view, the law is wise or consistent with sound policy. These are matters for the people and their chosen legislators to weigh. The court’s role is limited to holding the challenged law up to the state and federal constitutions – the foundations of our rule of law – to see if it satisfies the constitutional requirements. Rather than its own personal preferences, the court is required to apply a consistent, principled and reasoned analysis in evaluating the statute’s constitutionality.”
Gay and Lesbian people I know are described by many things about them: business owners, parents, community volunteers, and friends – they defy every ‘mainstream’ attempt at stereotype. They are individuals. They are people. And all of us will benefit from the certainty and assuredness with which legal processes will work because of this ruling. Those who will criticize this ruling, or even (sadly) denigrate Judge Downing for making it, will be hard put to plausibly predict outcomes that accomplish anything but that selfsame certainty and assuredness. This is at the bedrock of equal protection of laws – and fundamental to our freedom as Americans.
Our era too will some day be defined by great novelists of social criticism. Just as the nineteenth century had its greats, so will this millennium. Spanning the age between Charles Dickens and Thomas Hardy is a giant of conservative thought and founder of several disciplines in social science. His name was Herbert Spencer. In many ways, in his day, he was to the Right what Karl Marx was to the Left.
Today, conservatives who would leap into judgment of Judge Downing’s ruling should bear in mind that a touchstone statement by Herbert Spencer was powerfully simple:
“No one can be perfectly free till all are free.”
P. Scott Cummins © 2004 The Urbane R
(On August 4, 2004 King County Superior Court Judge William Lansing Downing issue a memorandum opinion finding that same sex couples have a legal right to be afforded all of the rights and privileges given male-female couples – and therefore should be allowed to be legally married in this state.)
Bill Downing has accomplished in only twenty six pages what every judge in other states who attempted it, apparently, could not. He establishes clearly and firmly how we are all benefited by making marriage about family, not gender. With a memorandum opinion crafted with care and concern for the sensibilities of all parties, and without the agenda-laden enthusiasm of activist judges in other states, Judge Downing has set forth community standards. And made law – in a ruling which I predict will not only stand to appeal – it will soar to praise.
This is the highest calling for a judge – making sensitive decisions firmly and clearly. Years ago I worked as a court bailiff at King County Superior Court. Someone did not have to work there very long to see the heart-breaking injustice of a society trying to ignore the obvious: same sex couples denied the benefits of rights and remedies afforded under Washington’s community property, inheritance and employment laws. Straight couples, when surfing the waves of the near-fifty percent divorce rate - sent to the streamlined, informal and dialogue-provoking world of the family law court commissioners. On the other hand, to this day, gay couples instead compelled to navigate the “perfect storm” of formal civil court rules and trial procedure with their ‘community’ property disputes. To many of us toiling in chambers on behalf of judges, the compelling injustice of this situation was obvious – and smacked of social ills outlined by Charles Dickens and Thomas Hardy in the nineteenth century.
In a King County Prosecutors office brimming with diverse talent hired by Norm Maleng, the status of Bill Downing as a ‘heavy hitter’ was beyond question when appointed to the bench in 1989. Prosecuting some of the most egregious murder cases in our state’s history will do that for one’s reputation. I had never met Bill Downing before, when as an experienced bailiff, I received the assignment of working for him in his first ever civil case. To add to the unsettled atmosphere, that case involved legendary trial lawyer (later Washington State Bar Association President, and now Washington Supreme Court Justice) Tom Chambers on behalf of the plaintiff. Downing, fresh from Judicial College, had never really handled much in the way of civil cases as a lawyer. And now his first assignment as a judge was a personal injury case! As is every trial judge, he was concerned with the specter of ‘error’ bringing rebuke from the appeals court. As a rookie judge on his first case, he was nervous about rulings on motions, and properly formatted jury instructions. He need not have worried: Bill Downing’s ‘growth’ into the job was instantaneous.
Fifteen years later, and now an experienced trial court judge, Bill Downing has ruled on gay marriage - crafting a decision that weighs civil rights, community standards and compelling state interests. “When the court is asked to sit in judgment of a law,” Downing states in his memorandum opinion, “it is not to consider whether, in its view, the law is wise or consistent with sound policy. These are matters for the people and their chosen legislators to weigh. The court’s role is limited to holding the challenged law up to the state and federal constitutions – the foundations of our rule of law – to see if it satisfies the constitutional requirements. Rather than its own personal preferences, the court is required to apply a consistent, principled and reasoned analysis in evaluating the statute’s constitutionality.”
Gay and Lesbian people I know are described by many things about them: business owners, parents, community volunteers, and friends – they defy every ‘mainstream’ attempt at stereotype. They are individuals. They are people. And all of us will benefit from the certainty and assuredness with which legal processes will work because of this ruling. Those who will criticize this ruling, or even (sadly) denigrate Judge Downing for making it, will be hard put to plausibly predict outcomes that accomplish anything but that selfsame certainty and assuredness. This is at the bedrock of equal protection of laws – and fundamental to our freedom as Americans.
Our era too will some day be defined by great novelists of social criticism. Just as the nineteenth century had its greats, so will this millennium. Spanning the age between Charles Dickens and Thomas Hardy is a giant of conservative thought and founder of several disciplines in social science. His name was Herbert Spencer. In many ways, in his day, he was to the Right what Karl Marx was to the Left.
Today, conservatives who would leap into judgment of Judge Downing’s ruling should bear in mind that a touchstone statement by Herbert Spencer was powerfully simple:
“No one can be perfectly free till all are free.”
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