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Wednesday, September 08, 2004 - Page updated at 07:31 A.M.

Excerpts from the ruling

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Here are excerpts from Thurston County Superior Court Judge Richard Hicks's ruling that Washington's ban on same-sex marriage is unconstitutional:

... marriage doesn't only involve two parties. It is a civil contract, approved by the government, that qualifies the parties, and any children involved, with real and significant benefits that are denied to those relationships that the government will not approve.

Washington grants to its citizens, in its libertarian tradition, greater individual rights than the federal government grants. Our sovereign state must respect these rights and treat each citizen in an even-handed manner.

Perhaps there is no greater proof of the degree of protection that Washington grants individual rights than Washington amending its Constitution and adopting the Equal Rights Amendment in November of 1972. But there is more. Washington repealed it miscegenation statute in 1888, prior to statehood, and 79 years before the U.S. Supreme Court declared such statutes unconstitutional in Loving v. Virginia. Our state repealed its laws against sodomy in 1975, 28 years before the U.S. Supreme Court declared such laws unconstitutional in Lawrence v. Texas.

On whether the state has an interest in limiting marriage to opposite sex couples to encourage procreation and child-rearing within stable environments: "This Lilliputian view of our present community does not reflect our common reality ... same-sex couples bear children by artificial insemination, same-sex couples 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."

On whether the state has an interest to reaffirm its historical commitment to the institution of marriage as a union between a man and a woman: "... if a historical commitment is the protected thing then such a bald justification would always prevent any change in any state law."
If the compelling state interest is to encourage procreation and stable environments for children then these statutes under scrutiny sweep too broadly and are not narrowly tailored for that purpose. They work to invalidate forms of family that the community recognizes and supports. Especially they weaken forms of family that provide stability for children. Surely these broad forms of family merit support of the community.

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 community not given to another class of 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.

Copyright © 2004 The Seattle Times Company

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