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Wednesday, July 26, 2006 - Page updated at 04:51 PM

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State Supreme Court upholds gay marriage ban

Seattle Times staff reporters

Marriage in Washington State remains a union between one man and one woman.

The State Supreme Court today upheld the state's 1998 ban on same-sex marriage, delivering a victory for supporters of traditional marriage and a sobering defeat for gays and their advocates.

Writing for a 5-4 majority, Justice Barbara Madsen said the state's Defense of Marriage Act, which defines marriage as between a man and woman, is constitutional because it furthers the state's interest of stable, child-producing unions.

"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," Madsen wrote.

Court documents

Ruling on gay marriage ban (PDF)

Concurring opinions (PDFs): 1 | 2

Dissents opinions (PDFs): 1 | 2 | 3

State Supreme Court site

As such, DOMA does not violate the state Constitution's privileges and immunities clause, which requires that any benefit granted to one group must be granted equally to all. "Allowing same sex couples to marry does not, in the Legislature's view, further these purposes," she wrote.

The ruling stems from two lawsuits 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.

Madsen was joined by Chief Justice Gerry Alexander and Justice Charles Johnson. Justices James Johnson and Richard Sanders joined the majority in a separate concurrence. Justices Bobbe Bridge, Mary Fairhurst, Susan Owens and Tom Chambers dissented.

Responses to today's ruling

He hopes that future legislatures and other jurisdictions "will look at the decision and move for full emancipation for gays and lesbians to be loving couples with marital rights. I wish that had been today."

—King County Executive Ron Sims

"We are pleased that this latest attempt by the homosexual agenda to radically redefine our culture has been stopped dead in its tracks. . . Today's decision upholding traditional marriage is a devastating setback to same-sex marriage proponents. Today is a great day for marriage and the family."

Mathew D. Staver, Founder and Chairman of Liberty Counsel

"I don't see why gay people shouldn't have the right to commit themselves to a lifelong partnership the way anyone else does."

Devin Booth, 27, outside the store off Broadway where he works selling books.

"My real emotion is bewilderment. Knowing my relationship with my partner — which is my miracle — can cause so much prejudice, I can't figure it out."

Jo Palm, 70, who's been in a relationship for 21 years

"This is the right thing for our children, families and our communities. It is good public policy for the state to encourage marriage between a man and a woman."

Sen. Val Stevens, R-Lake Stevens

"The Washington State Supreme Court had a chance to tear down another wall of inequity and prejudice that has long stained our society. Unfortunately, five of the justices chose not to grant gay and lesbian people access to a basic right that the rest of us enjoy — the ability to marry and share our lives in the eyes of the state with someone we love."

Seattle Mayor Greg Nickels

"I'm confident the value of all marriage, especially gay marriage, will be both respected and valued for its benefits to both the community and family values."

Buckley Wild, 52, an educator from Seattle

"Today's decision from the Washington Supreme Court is disappointing, not just for our neighbors to the north, but for all Americans who care about fundamental fairness and equality under the law."

Frank Dixon, Basic Rights Oregon Interim Executive Director

"As stated in our platform, we believe: That the state should not interfere with couples who choose to marry and share fully and equally in the rights, responsibilities and commitment of civil marriage, regardless of sexual orientation or gender identity."

State Democratic Chairman Dwight Pelz

"This ruling denies that we're capable of love and that we're capable of commitment."

— Brenda Bauer, plaintiff in the case

Madsen wrote that the plaintiffs did not sufficiently show that gays are members of a suspect class — a reference to groups entitled to protection against discrimination by virtue of characteristics such as race – or that there is a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, the Legislature's decision that only opposite-sex couples are entitled to civil marriage is a "rational basis" for the Defense of Marriage Act.

DOMA, the majority found, also does not violate the due process clause of the state Constitution, which states that "No person shall be deprived of life, liberty, or property, without due process of law."

"The people of Washington have not had in the past, nor at this time are they entitled to an expectation that they may choose to marry a person of the same sex," Madsen wrote.

A question for lawmakers

Although the ruling was the judiciary's final word on gay marriage, it seemed to suggest that the Legislature could act to provide civil unions or marriage to same-sex couples. Given the clear hardship faced by same-sex couples evidenced in the lawsuit, the justices wrote, the Legislature may want to re-examine the impact of the marriage laws on all citizens of this state.

At a news conference in Olympia today, Gov. Christine Gregoire indicated her personal views were more in line with the Supreme Court's dissenters.

"I do not believe the state should be in the business of discrimination and when the state allows me to have certain rights and responsibilities, I think those same rights and responsibilities ought to be afforded to every citizen in our state," Gregoire said.

Gregoire said she would support legislation to grant same-sex couples the same "rights and responsibilities" that heterosexual couples enjoy. But she agreed legislative leaders who said today that there is not enough support in Olympia to amend DOMA and allow same-sex people to marry.

State Rep. Ed Murray, a gay lawmaker from Seattle, said he would have married his longtime partner Aug. 10 if the ruling had gone the opposite way. He said he expected to see a gay-marriage bill introduced in the Legislature, but did not expect it to pass.

"We're just like thousands of other couples around the state who are just very disappointed and hurt that our relationships are still considered second class," Murray said.

Sen. Val Stevens, the Lake Stevens Republican who intervened in the case, praised the Supreme Court for upholding the Legislature.

"This is the right thing for our children, families and our communities," Stevens said in a statement. "It is good public policy for the state to encourage marriage between a man and a woman."

Senate Majority Leader Lisa Brown said that while she was personally saddened by the ruling, she doesn't think there is a consensus in the Legislature to either overturn or reinforce the ruling.

Brown said she expects various factions will push a wide range of bills next session – from legalizing same-sex marriage to enshrining DOMA in the state constitution.

"I think it will be some time before we'll see any decisive move in the Legislature away from the status quo," said Brown, D-Spokane.

Brenda Bauer, a plaintiff in the case, was disappointed by the court's decision.

"This ruling denies that we're capable of love and that we're capable of commitment," Bauer said.

A fractured court

The ruling came 16 months after it was argued in Olympia, and it was clear that the justices had strong and diverse opinions. James Johnson wrote a separate concurrence of Madsen's opinion, and Bridge, Chambers and Fairhurst each wrote dissents.

"This is a difficult case only if a court disregards the text and history of the state and federal constitutions and laws in order to write new laws for our State's citizens," wrote James Johnson, in his concurrence with Madsen's majority opinion.

"Courts are not granted such powers under our constitutional system. Our oath requires us to uphold the constitution and laws, not rewrite them."

In writing a dissenting opinion, Fairhurst said the state has no rational basis for denying same sex couples the right to marry.

The majority conclusion, she wrote, condones "blatant discrimination against Washington's gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children... while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests."

Justice Bridge, in her own strongly-worded dissent, wrote that DOMA's "religious and moral strains" make it an unconstitutional breach of the church-state wall.

The majority's deference to the Legislature "too easily dismisses the proper role of the judiciary to protect the constitutional rights of those who have been historically disenfranchised from the political process," she wrote.

Only Massachusetts

Had the court struck down the law, Washington would have become only the second state in the nation, after Massachusetts, 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. The Legislature overrode a veto by then-Gov. Gary Locke.

Since then, a majority of states have passed similar gay-marriage bans.

Although Massachusetts's supreme court sided with gay-marriage advocates, more recent rulings across the country have gone the other way. Earlier this month, courts in New York and Nebraska ruled that gays don't have the right to marry.

Gary Randall, president of Faith and Freedom Network, a conservative evangelical lobbying group that intervened in the case to fight against gay marriage, said he was very pleased with the decision.

"The thing that struck me was that (the justices) stayed with the tradition of neutrality on the issue and the idea that the family is an institution that is 5,000 years old at least and although imperfect, works for the good of society."

Randall said his group was still assessing its future plans on the issue in light of today's ruling, but would be in favor of pushing for a state constitutional amendment banning gay marriage.

Staff writers Ralph Thomas and Janet Tu contributed to this report.

Copyright © 2006 The Seattle Times Company

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