State law under fire as right to marry is argued

Precisely one year to the day after gay and lesbian couples sued in Washington for the right to marry, the nine justices of the state Supreme Court this week listened to legal arguments about the state's ban on same-sex marriage.

At issue was the state's 7-year-old Defense of Marriage Act (DOMA), one of 38 such state laws limiting marriage to one man and one woman. Eight gay and lesbian couples in King County challenged the law last March and a second lawsuit was filed later by 11 couples from across the state. Two superior court judges applied different analyses to declare the law unconstitutional, and a consolidated appeal paved the way for the case to reach the high court.

The couples base their claim to marriage on specific principles of Washington's constitutional law. Here's how some of the arguments on key legal questions played out Tuesday at the hearing in Olympia:

Is the denial of civil marriage to gay and lesbian couples a rational interest of the state?

Central to the couples' claim is that the ban on same-sex marriage violates the state constitution's privileges and immunities clause, which requires that any privileges offered to one group be offered to all.

DOMA defenders must prove a rational reason for the statute, that it serves a legitimate state purpose. That issue generated some of the most lively sparring between the justices and the attorneys on both sides.

Senior assistant state attorney general William Collins told the court the state has an interest in protecting children, and thus in the relationships that produce them: "Only sexual intercourse between a man and a woman can result in children — whether planned or unplanned," he said.

"In the history of this country we have tried to channel that sexual relationship into marriage."

But Justice Tom Chambers suggested that rationale for marriage might be outmoded. "We have statutes to authorize assisted pregnancies by in-vitro fertilization," he noted.

Other justices also challenged the state, asking if those defending DOMA felt the state had the power to force people to marry if they conceive children together and whether the state was in the business of promoting marriage.

"Is the state just hanging onto a dinosaur?" Justice Barbara Madsen asked.

Patricia Novotny, an attorney for the plaintiffs, called DOMA a scheme "that favors one class of children, not because of the way they were created but because of the identity of their parents.

"What legitimate purpose is served by discriminating against one set of children because their parents are lesbian and gay?"

The justices probed the motives behind the 1989 passage of DOMA. Was it a bias against gays, or something else? A belief that homosexuality is immoral?

When did it become irrational to limit marriage to one man and one woman, Justice Richard Sanders wanted to know. "You've got to concede that marriage historically has been between a man and a woman," he said. "Has that always been irrational or is it just irrational now?"

Plaintiff attorney Paul Lawrence responded: "All we know is that we are here today at a time when the Legislature and the courts have acted to take procreation and child rearing outside of marriage."

In seeking the right to marry, same-sex couples say they are simply seeking what heterosexuals have. Is marriage a fundamental right?

The plaintiffs argued that it is, while the state and intervenors noted that same-sex marriage has no roots in the nation's history and tradition.

Justice Bobbe Bridge pointed out that even before the U.S. Supreme Court struck down laws barring inter-racial marriage in the 1967 case of Loving v. Virginia, the California Supreme Court had found marriage to be a fundamental right.

"There's always a first, right?" Bridge asked.

Intervenors attorney Steven O'Ban argued by the time Loving was decided, tradition in the country had begun to shift.

The civil-rights movement had come about and four states had repealed anti-miscegenation laws in the 15 years leading up to the decision and only 16 had it on their books at the time the law was passed.

"So fundamental rights depend on what's popular and what's not?" Bridge asked.

In 1972, Washington voters approved an Equal Rights Amendment to the state Constitution to ensure men and women are treated equally. Is denying gays the right to marry a violation of the ERA?

In 1974, the Washington Court of Appeals ruled in Singer v. Hara that denying two homosexual men marriage licenses was not a violation of the ERA. Chief Justice Gerry Alexander noted that the Singer case was decided at a time when the law did not define marriage as a union of one man and one woman. "It talked about persons. DOMA is much clearer."

Alexander challenged the plaintiffs to explain exactly how DOMA violates the ERA: "A man can marry a woman and a woman can marry a man. Doesn't seem there's any gender discrimination."

Novotny said the ERA protects an individual's right. "I as an individual have a right to be treated without regard to distinction based on my sex," she said. "It's no remedy that a man is also deprived. It is still a distinction based on sex."

Justice James Johnson said there is a lack of evidence that proponents of the amendment intended to authorize same-sex marriage.

"Not only this state, but quite a few states passed an ERA," he said. "None mandates the conclusion that you've come to here," he told the advocates of same-sex marriage.

Are homosexuals a suspect class, a legal definition entitling gays to special protection in the same way race and gender bars discrimination against minorities and women?

In his Thurston County ruling on same-sex marriage last year, Superior Court Judge Richard Hicks found that gays are a suspect class, although the defendants point out that a majority of courts have not reached that conclusion.

Madsen pushed the defenders of DOMA: Given that there are gay and lesbian people who may by some definition be considered powerless and given that antipathy toward them may have played a role in the passage of DOMA, "... why do homosexual persons not constitute a suspect class?"

Senior King County prosecuting attorney Darren Carnell said courts historically have been hesitant to find new suspect classes and generally have found them only where there's a history of insidious, government-backed discrimination, such as slavery.

O'Ban said courts have made distinctions between obvious traits that can cause people to be the subject of discrimination, such as race and gender, and traits such as homosexuality that are self-proclaimed.

Are the couples' claims entitled to independent consideration under the state constitution?

Traditionally in discrimination cases, the Supreme Court considers the state's privileges and immunities clause together with the equal protection clause of the 14th amendment of the U.S. Constitution. The advocates of same-sex marriage pointed out that they are challenging state, not federal law, and believe the state constitution offers greater individual protections than the federal. As a result, they argued the justices should consider their claims independent of the federal provision.

But the state said the Supreme Court has held that the two are the same and for "over 100 years" has considered them together.

The court separated them in a Grant County annexation case last year in which rights were being extended to a minority group that weren't being granted to everyone.

The court, the state said, should be cautious about separating them when considering a claim that a minority group is being subject to undue discrimination.

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