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Thursday, September 09, 2004 - Page updated at 07:00 P.M.
Gays are a protected class, state judge rules
By Lornet Turnbull
Thurston County Superior Court Judge Richard Hicks was the second trial judge in four weeks to strike down Washington's Defense of Marriage Act, overwhelmingly approved by the Legislature six years ago.
Hicks, in a 38-page ruling, wrote, "The clear intent of the Legislature to limit government approved contracts of marriage to opposite-sex couples is in direct conflict with the constitutional intent to not allow a privilege to one class of a community that is not allowed to the entire community."
But Hicks went further, finding that under Washington's Constitution, homosexuals are a so-called suspect class, groups with such immutable characteristics as race or sex that entitle them to equal protection of the law.
King County Superior Court Judge William Downing, in his Aug. 4 ruling, had declined to find homosexuals a protected class, based on federal law.
Hicks' finding surprised some legal observers and outraged gay-marriage opponents.
"The court is taking a significant step in deciding the issue this way," said Peter Nicolas, a University of Washington law professor who teaches a course in sexual-orientation law. "A lot of decisions, including some from the U.S. Supreme Court, have said just the opposite."
Pastor Joseph Fuiten, president of Washington Evangelicals for Responsible Government and an opponent of same-sex marriage, called the judge's decision "an astounding widening of rights for homosexuals."
Many members of his church, Cedar Park Assembly of God in Bothell, identify themselves as former gays, he said. "I have no black members who used to be white."
"It's a huge leap," he said of the protected-class finding. "Everything flows from that. It entitles [gays] to full protection."
Hicks, like Downing, ruled that marriage is a fundamental right and that the state, by denying that right to gays, also denies them a laundry list of benefits and privileges afforded to heterosexuals.
Like Downing's ruling, Hicks' decision has no immediate practical effect; counties cannot begin issuing marriage licenses to same-sex couples. Ultimately, both cases will be merged and likely heard before the state Supreme Court, possibly by mid-December.
But for the 11 gay couples, represented by the American Civil Liberties Union of Washington, who sued the state for the right to marry, the emotional impact of Hicks' ruling couldn't be more immediate.
"This has been a life issue for us: being a family and having that recognized," said Brenda Bauer, who along with her partner, Celia Castle, are the lead plaintiffs. Jeff Kingsbury, another plaintiff, said it's fitting that a state as socially progressive as Washington could carry same-sex marriage forward.
"I believe the citizens of our state are ready for this and want it," he said. "In a few years, we'll all know at least one same-sex married couple and be wondering what all the fuss was about."
The couples, along with gays and lesbians across the state who seek the right to marry, now shift their attention to the state capital, where the state Supreme Court and, perhaps, the Legislature may ultimately decide the fate of gay marriage.
Sen. Val Stevens, R-Arlington, has said she wants to introduce a state constitutional amendment banning same-sex marriage in the next legislative session.
Stevens, who was the key sponsor of the state's Defense of Marriage Act (DOMA), expressed disappointment in Hicks' ruling. "The Legislature passed DOMA to prevent the erosion of traditional families, acknowledging that marriage is between a man and a woman," she said in a statement.
Rep. Ed Murray of Seattle, an openly gay Democrat, said, "The Legislature hurt marriages and families when it passed this law. Politicians always talk about supporting marriage and family. This is the acid test."
Assistant Attorney General William Collins had argued that most Americans don't support gay marriage, as evidenced by the 38 states that have added DOMA laws in the past eight years. Collins had asked the court, if it found for the plaintiffs, to advise the Legislature that it could establish civil unions, marriagelike arrangements that offer equal benefits to same-sex couples. But Hicks wrote, "This court will decline to give an advisory opinion."
Collins yesterday called it "interesting that a trial court came to the conclusion" that gays are a protected class.
"I don't think those trial-court rulings go up on appeal with any presumption of correctness," he said. "The [high court] will be interested in what the trial-court judges say, but they will make their own independent decision about the constitutionality of the law.
"Ultimately, the Supreme Court will decide if they hear the case, when they will hear the case and how they will hear the case."
ACLU attorney Paul Lawrence, who had argued the case, praised the judge's ruling, calling it "well-grounded in state constitutional-law principles."
"He makes a very clear finding that the state Constitution requires equal treatment of all citizens and that state marriage laws don't provide equal treatment and are therefore unconstitutional."
Citing the compelling nature of the gay-marriage cases, Lawrence predicted "this is exactly the type of case that the state Supreme Court will take directly on review," bypassing the Court of Appeals.
Nicolas, the UW law professor, also noted that while the Supreme Court owes no deference to the trial courts, "The chances are more likely for a state Supreme Court finding that state law is unconstitutional on some ground."
Beyond that, however, the legal question becomes more complicated, more political than legal, he said.
It becomes a question of whether Washington is more like Vermont and Massachusetts or Alaska and Hawaii, Nicolas said.
Vermont's high court allowed civil unions, while Massachusetts ordered its Legislature to provide gay couples with nothing less than marriage.
In Alaska and Hawaii, the state constitutions were amended to ban gay marriage.
Lornet Turnbull: 206-464-2420 or email@example.com
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