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Wednesday, August 30, 2006 - Page updated at 12:54 AM

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Second look at gay marriage?

Seattle Times staff reporter

Attorneys representing 19 gay and lesbian couples in Washington on Tuesday asked the state Supreme Court to reconsider its 5-4 decision that upheld the state's ban on gay marriage.

Such a petition is not uncommon in a ruling this close, lawyers say, although the high court seldom grants such motions.

"This rule allowing motions seeking reconsideration exists because of cases exactly like ours," said Nancy Sapiro, senior counsel at Northwest Women's Law Center, which represented gay couples in the case.

"Since the stakes in this case are so high — whether or not the state will recognize our clients' families and thousands like them throughout the state — we felt that we had to use every option available to us to show the justices the logic behind our arguments and how their decision as it is currently reasoned falls short," she said.

If the court rejects the request, its earlier ruling becomes final. If the request is granted, the justices could change their decision without holding another oral argument or they could decide to hear arguments for further clarification. There is no timetable.

In their petition for reconsideration, lawyers for the plaintiffs contended that the justices had failed to answer the questions set out before them.

"Instead of explaining why our clients couldn't marry, the court told us why marriage is good for different-sex couples," said Jon W. Davidson, legal director of Lambda Legal. "Barring same-sex couples from marriage only hurts same-sex couples and their families — it doesn't help anyone."

They also claimed that the justices failed to consider their claim that denying gays the right to marry amounts to sex discrimination.

The 19 couples sued King County and the state in two separate lawsuits, claiming the state's Defense of Marriage Act (DOMA), which restricts marriage to one man and one woman, is unconstitutional.

Two Superior Court judges had sided with plaintiffs in 2004, and those separate cases eventually were argued as one before the high court in 2005.

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In the majority opinion handed down July 26, the Supreme Court justices said DOMA was not unconstitutional and that its passage by the Legislature in 1998 was justified.

The justices urged the Legislature to consider the law's impact on the state's gay couples and appeared to leave open the door for couples to challenge the law on other grounds — including the denial of survivor benefits, hospital-visitation rights and numerous other benefits afforded married couples.

The lawyers filed their motion Tuesday under Supreme Court rules that allow either side in a lawsuit to seek reconsideration of a decision.

Paul Lawrence, lead attorney on the ACLU's legal team for the case, said the court did not acknowledge the harm to same-sex couples who are denied access to the many benefits of marriage.

"The court's reliance on the tie between procreation and marriage does not make sense," Lawrence said. "Many opposite-sex couples get married with no intention of having children, and many same-sex couples do in fact raise children."

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com

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