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Thursday, November 4, 2004 - Page updated at 12:00 AM

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Gay-rights activists look to the courts

Seattle Times staff reporter

A year that brought gay and lesbian couples hope, when the potential for legitimate marriage seemed euphorically within reach, came to a dispiriting end for many of them Tuesday at the ballot box.

Voters in 11 states — in the Northwest, throughout the Midwest and in the Deep South — amended their constitutions to deny same-sex couples the right to marry.

Opponents of the bans had expected broad defeat but had hoped at least that a well-oiled, well-funded campaign in Oregon would prevent a nationwide shutout.

They were wrong.

In practically every state, the votes were emphatic and overwhelming — ranging from a 14-point margin in Oregon to a 72-point difference in Mississippi.

In eight of the states, the measures called not just for a ban on same-sex marriage but also barred civil unions or domestic partnerships that allow gay couples certain benefits and rights.

The results have left gay-marriage supporters in Washington and across the country wondering what happens next: Could Tuesday's results be contagious?

"We knew going in that this was an incredible uphill struggle, not necessarily because marriage was on the ballot but because fundamentally it's wrong to put a basic human right up for popular vote," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.

"I'm convinced that if freedoms that many of us take for granted right now — freedom of choice, to attend desegregated schools, let alone free press or free speech — were put to a popular vote, we wouldn't have them in most states, even today."

With the losses behind them, gay-rights activists now look to state courts, where they've enjoyed more success. Lawsuits over gay marriage are moving through courts in a handful of states, including New York, Connecticut and New Jersey.

The Washington Supreme Court is expected to hear oral arguments early next year in a consolidated suit in which two Superior Court judges separately ruled in favor of gay marriage.

And in Georgia, gay-marriage proponents have already filed a legal challenge to that state's newly approved constitutional gay-marriage ban, which voters backed by a margin of 77 to 23 percent Tuesday.

But the Rev. Joseph Fuiten, of Bothell's Cedar Park Assembly of God Church, said Americans in 11 states on Tuesday, and in six other states before that, spoke in a clear voice on the issue of gay marriage.

"What this tells you is that a great majority of people have lost confidence in the courts to be fair and act wisely," he said. "In the old days, people used rifles to defend what they believed in. Now they're using the ballot box."

Tuesday's vote on gay marriage was closest in Oregon and Michigan, also the only two states won by Sen. John Kerry among the 11 voting on the issue.

Yesterday, gay-marriage proponents weren't eager to blame the gay-marriage shutout on renegade-style decisions earlier in the year, in places like San Francisco and Oregon's Multnomah County, to issue same-sex marriage licenses.

For his part, Fuiten credited the sweep to new evangelical voters who churches had urged to the ballot box.

"Evangelicals voted in large numbers across the country," he said. "The driving issues were moral issues and of those, gay marriage was key."

But Foreman, of the Gay and Lesbian Task Force, said gay marriage was only one social issue that seemed to energize the religious right.

"The Bush administration used an array of social issues — stem-cell research, late-term abortions, prayer in schools — these so-called morality issues, to divide America. Gay marriage was only one of them."

Jamie Pederson, an attorney with the advocacy group Lambda Legal, saw some silver linings in Tuesday's otherwise dark clouds.

In Washington, for example, there's a chance that Democrats may gain control of the Senate and could increase their lead in the House. But even if the status quo political balance remains in the Legislature, a two-thirds majority in both houses is required to place a constitutional amendment on the ballot.

"That probably means that a constitutional amendment is dead — it's unlikely to come to a floor vote," Pederson said.

State Sen. Val Stevens, R-Arlington, who had planned to introduce legislation to amend the constitution to ban gay marriage, now says that if there's a shift in the Legislature she may have to reconsider.

"I might still go ahead and introduce it," she said. "We want to see how we might be able to use Rob McKenna [newly elected Republican attorney general] to help us activate some of what has been neglected in the state for years."

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

Copyright © 2004 The Seattle Times Company

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