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Saturday, January 28, 2006 - Page updated at 12:00 AM

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Upcoming gay-marriage ruling now takes center stage in state

Seattle Times staff reporter

Next up: gay marriage.

With gay rights approved by the Legislature on Friday, attention turns to a lawsuit pending in the state Supreme Court, where 19 same-sex couples are challenging a state law that bars them from marriage.

A decision in the case is expected at any time.

Opponents of the gay-rights bill repeatedly argued that extending civil-rights protections to gays would lead to same-sex marriage because it weakens the legal argument against it.

Plaintiffs in the gay-marriage case argue that the state's Defense of Marriage Act (DOMA) violates the privileges and immunities clause of the state constitution, which prohibits any law that grants benefits to one group that are not afforded to all.

DOMA limits marriage to one man and one woman.

The Rev. Joseph Fuiten, pastor of the Cedar Park Assembly of God in Bothell and a gay-rights opponent, said that, by granting special rights to gays as a group, the state can't turn around and deny them the right to marry.

"If you make them a protected class, you are down the slimy slope of having to grant same-sex marriage," he said.

But Jamie Pedersen, a Seattle attorney and a member of Lambda Legal, a gay-rights group, said yesterday's vote actually could work against the gay community:

"You could very well make the argument that having the speaker of the House, the Senate majority leader and the governor all stand up and congratulate the gay community undermines the idea that we are a politically powerless group."

Courts can consider whether a group is politically powerless and historically disadvantaged when deciding if a law violates someone's rights.

Attorneys for the couples and the state of Washington argued their cases before the nine justices of the Supreme Court last March.

Decision by March 9?

They had anticipated a decision last fall, and then before the legislative session started this month. They now expect the court to rule by March 9, when the session ends.

Pedersen and Julie Shapiro, an associate professor at the Seattle University School of Law, said the length of time it's taking the justices to rule means little or nothing.

"It's not uncommon for the justices to flip several times before finally deciding," Pedersen said. "Several of the justices were potentially on the middle in this case."

Legal observers have mapped out three possible outcomes: upholding DOMA, striking it down and ordering the state to issue marriage licenses to gays, or ordering the Legislature to find a fix.

"I believe they are going to rule to give us marriage equality," said Rep. Ed Murray, D-Seattle, sponsor of the gay-rights bill that passed Friday. "I don't see how you can have a constitution we have that guarantees the rights we have, and deny good citizens the right to marry.

"If the court doesn't do it, I've got a marriage bill sitting on my desk that's written and ready to go."

It took nearly 30 years for the gay-rights bill to pass the Legislature.

Tom McClusky, director of government affairs for the Family Research Council, a conservative Washington, D.C., lobbying group, said same-sex couples from other states are waiting for the chance to marry in Washington if this state approves gay marriage.

And his group, which has led the movement for a constitutional ban on same-sex marriage, is prepared to call for a vote on a U.S. constitutional amendment if that happens.

"Not going away"

Until such an amendment passes, "we'd like to see a vote every year," McClusky said. "The issue is not going away."

Shapiro noted that of the 16 states that extend civil-rights protection to gays, 11 also have DOMA statutes banning gay marriage.

One state — Massachusetts — has both gay rights and gay marriage.

"I don't think this changes the marriage argument at all — doesn't legally affect the case at all," she said of Friday's vote on the gay-rights bill.

Recognizing the possibility of a referendum to undo what the Legislature did Friday, she pointed out that "polling data show that typically more people are opposed to discrimination than support [gay] marriage. A lot of people see them as separate issues."

Staff reporters Janet I. Tu and Andrew Garber contributed to this report.

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

Copyright © 2006 The Seattle Times Company

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