By Lornet Turnbull
Seattle Times staff reporter
The Washington Supreme Court today upheld the state's 1998 ban on same-sex marriage — a ruling decried by gay activists but heralded by supporters of traditional marriage.
The 5-to-4 decision came as a sobering defeat for gays and their advocates, who'd hoped the court would strike down the so-named Defense of Marriage Act — DOMA — which restricts marriage to one man and one woman.
Had the court struck down the law, Washington would have become only the second state in the nation, after Massachussets, to allow same-sex couples to marry.
Washington passed DOMA in 1998, two years after the federal government passed such a law, defining marriage as a union between one man and one woman. Since then, a majority of states have passed similar gay-marriage bans.
Two separate lawsuits challenging the Washington statute were filed in 2004 — one against King County, the other against the state — by 19 gay and lesbian couples seeking the right to marry or to have their marriages from elsewhere recognized in this state.
In each of those cases, a Superior Court judge sided with the plaintiffs, applying different analyses to declare the state's DOMA unconstitutional. The two cases were merged into one for the appeal to the Supreme Court, which was argued March 8, 2005, by attorneys for both sides.
The couples based their claim to marriage on specific principles of constitutional law. Central to their claim was that the ban on same-sex marriage violates the state constitution's "privileges and immunities" clause, which requires that any privilege offered to one group be offered to all.
Those defending the law argued that the statute served a legitimate purpose in that the state has an interest in protecting children, and thus in the relationships that produce them.
But the couples called DOMA a scheme "that favors one class of children, not because of the way they were created but because of the identity of their parents."
The plaintiffs also argued that marriage is a fundamental right, while the state and other defendants said that same-sex marriage has no roots in the nation's history and tradition.
And the sides disagreed over whether gays are considered a so-called suspect class — a reference to groups entitled to protection against discrimination by virtue of such characteristics as race or gender.
First argued before the high court 16 months ago, Andersen vs. King County involves 19 gay and lesbian couples from across the state who challenged the constitutionality of Washington's Defense of Marriage Act (DOMA). Passed overwhelmingly by the Legislature in 1998, the law limits marriage to one man and one woman.
Before the decision came down, Lisa Stone, executive director of the Northwest Women's Law Center, one of three organizations that sued on the couples' behalf, said, "We've always thought the law was on our side. Washington's constitution is strong and protective of individual rights and we believe the court will find that, too."
Doug Honig, spokesman for the American Civil Liberties Union of Washington, which also argued on the couple's behalf, said "We have high hopes that it will be a ruling in favor of fairness and equality for all families in the state."
The Rev. Joseph Fuiten, chairman of the Faith and Freedom Network, a conservative evangelical lobbying group that opposes same-sex marriage, said "I have been on both sides of this: it's going to come our way, it will go the other way. I've alternated on a daily basis for 16 months.
"I wish I were a prophet."
The country is deeply divided on the rights of gays and lesbians to marry. Andersen vs. King County represents one of the most important social questions to confront the state's high court in a decade and is one of the most controversial.
In 2004, the couples first filed two separate lawsuits challenging DOMA — one against King County the other against the state of Washington. Separately, Superior Court justices in King and Thurston counties ruled in their favor of the couples, striking down the state statute that denied them the right to marry. On appeal, the cases were merged into one and argued before the nine justices of the Supreme Court last year.
"Whichever way goes, it will be an important and influential decision in the ongoing courthouse battles across the country over the redefinition or not or marriage," said Monte Stewart, a Constitutional law expert, and former U.S. Attorney in Nevada.
State Sen. Dan Swecker, R-Rochester, said if the court strikes down DOMA, he's pretty certain Republican leaders would immediately call for a special session. But such a session would be up to the Democrats. Unlike when lawmakers overwhelmingly passed DOMA in 1998, Republicans are now in the minority in both the House and Senate.
If the court rules against the couples, Washington would follow New York, where the Court of Appeals — the state's highest court — earlier this month ruled 4-2 against same-sex marriage. The justices argued that limiting marriage to opposite-sex couples could be based on the notion that children benefit from being raised by two natural parents.
Julie Shapiro, associate law professor at Seattle University said it's not unreasonable to think that the justices will be paying attention to U.S. and world occurrences that might impact the case. "It's not like it's a jury that's sequestered. They can and do know what's changing in the world."
Just to be sure, Rev. Fuiten, who was one of several evangelical ministers to intervene as defendants in the King County lawsuit, said the justices were provided information on the New York ruling.
"You don't think of New York as a bastion of conservativeism," Fuiten said. "It's not just conservative states that have gone that way. All the court decisions are going in our favor. Every vote has gone our way."
But calling the New York decision "legally fairly weak," Stone said it does not unduly concern gay marriage advocates in Washington. "Our Constitution is different and our DOMA is different from New York's," she said.
Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com
