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Thursday, July 27, 2006 - Page updated at 12:00 AM

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Supreme Court upholds state gay-marriage ban

Seattle Times staff reporters

Court documents

Ruling on gay marriage ban (PDF)

Concurring opinions (PDFs): 1 | 2

Dissents opinions (PDFs): 1 | 2 | 3

Washington courts

The state Supreme Court's decision Wednesday to uphold Washington's gay-marriage ban leaves advocates of same-sex marriage looking to a Legislature that's not likely to help them out — at least not anytime soon.

State Rep. Ed Murray, a gay state lawmaker from Seattle, promised disappointed plaintiffs that he would introduce legislation in January to bring marriage equality to the state. But he acknowledged that the votes don't exist for marriage or civil unions and that it could be years before such a measure is approved.

Senate Majority Leader Lisa Brown agreed, saying she doesn't think there is a consensus to pass gay-marriage legislation or to reinforce the ruling with a constitutional amendment.

"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.

The court's splintered 5-4 ruling in Andersen v. King County, which included six separate opinions over nearly 200 pages, delivered a blow to gay-rights advocates here and across the country who had counted on a win in Washington to help bolster the gay-rights movement.

The nine justices upheld the state's Defense of Marriage Act (DOMA), which limits marriage to one man and one woman, saying the basis for the law when it was passed eight years ago — procreation and encouraging families headed by biological parents — was valid.

The 19 couples who were plaintiffs in the case did not prove, the justices said, that sexual orientation is a suspect class, like race is, or that there is a fundamental right to same-sex marriage.

David and Michael Serkin-Poole, who have been together 25 years and together raised three developmentally disabled children, said the court has chosen to set families like theirs aside for discrimination.

"Our children are better served by knowing that our family is recognized along with every other family in the state," said plaintiff David Serkin-Poole, a cantor at Temple B'Nai Torah in Bellevue.

The decision buoyed evangelical leaders and defenders of traditional marriage, who applauded the justices and said they are unlikely to seek a constitutional amendment as a result.

The justices suggested the decision does not preclude the Legislature from offering civil marriage to gays, and they left open the possibility for another legal challenge to DOMA by gay couples on the grounds that a host of statutory benefits, such as health care and death benefits available to heterosexual couples, are denied gays.

"The Legislature was entitled to believe [when it established the law] that limiting marriage to opposite-sex couples furthers procreation is 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," Justice Barbara Madsen said, writing for the majority.

"Allowing same-sex couples to marry does not, in the Legislature's view, further these purposes," she wrote.

In a strongly worded dissent, Justice Bobbe J. Bridge said the "impact of this case upon the plaintiff couples and their children is both far reaching and deeply saddening."

It "extends to all of Washington's gay and lesbian citizens and to the many fair-minded Washington citizens who hoped for a different result in this case."

Pastor Joseph Fuiten, chairman of Faith and Freedom Network and a DOMA supporter, said he would be sending out a mailing to some 30,000 people about the fall election in which two of the four dissenting judges are up for election.

The judges' written opinions "let people know where the justices are on fundamental family issues," Fuiten said. "This decision smokes them out as to what their values are."

Democratic Gov. Christine Gregoire urged all sides to respect each other's opinions. "I just hope it doesn't break apart the state."

Making her first definitive comments on the case, Gregoire indicated her personal views were more in line with the Supreme Court's dissenters. Raised by a single mother, she said she doesn't think families should only be defined as a man and a woman with children.

"Family is about love, family is about nurturing, family is about giving your all to your children," she said.

State Attorney General Rob McKenna, whose office defended DOMA in the case, said the ruling reflects the court's respect for the Legislature's policy-making role.

"Moving forward, people who are unhappy with this decision have the ability to change the law through the Legislature or through initiative — but public policy should not be legislated from the bench."

Series of setbacks

In 2004, the 19 gay and lesbian couples sued King County and the state in two separate lawsuits seeking to overturn DOMA. Superior Court judges in King and Thurston counties applied different constitutional analyses to find the law unconstitutional.

The cases were merged and argued as one before the Supreme Court on March 8, 2005. Wednesday's ruling reverses both lower-court decisions.

The decision follows a recent string of setbacks for gays and lesbians in courts across the country, including a July 6 ruling by the New York Court of Appeals that gays have no constitutional right to marriage.

Many believe the Washington decision will have implications in other states such as New Jersey, California and Maryland, where the gay-marriage question is pending before the courts.

Monte Stewart, constitutional-law expert and president of the Marriage Law Foundation, which opposes same-sex marriage, said the Washington justices' frequent references to the New York case suggest it may have played a role in their decision.

"Because of the strength of the analysis of the majority, the Washington decision today will be important in all the court battles still raging and being initiated," he said.

But for same-sex couples in Washington, Wednesday's decision was the end of the legal line for now.

"This is a very sad day, but it is not the last day," said Lisa Stone, executive director of the Northwest Women's Law Center, among three organizations that sued on the couples' behalf.

"For now, the courthouse avenue to justice is closed. But that doesn't mean every avenue is closed. We will not give up."

But Jeff Kemp, president of Families Northwest, which advocates for strong nuclear families, said the decision was "a wonderful encouragement" to those in Washington and around the country who support traditional marriage.

"Every child has a birthright to a mother and a father," Kemp said. "The country needs that. The court recognized that."

Judicial restraint

Julie Shapiro, law professor at Seattle University, said the majority opinion is an obvious exercise in judicial restraint. "It's interesting to think of that against the backdrop of all this talk about judicial activism.

"The majority is trying to convey that this is not our judgment about whether marriage is a good thing. We will restrain ourselves and the Legislature gets to decide this."

Though it changed nothing, the ruling appeared to leave open some doors, one that might allow same-sex couples to once again challenge DOMA, this time on grounds that limiting marriage to heterosexuals denies same-sex couples access to a host of rights and benefits, in the areas of inheritance rights, health insurance and medical decision making.

Seven of the nine justices recognized that inequality and suggested nothing in their ruling would preclude the Legislature from finding a fix, either in the form of marriage or civil unions.

"Given the clear hardship faced by same-sex couples evidenced in this lawsuit, the Legislature may want to re-examine the impact of the marriage laws on all citizens of this state," Madsen said.

Stone, of Northwest Women's Law Center, said it is too soon to say whether that's an avenue the group might consider.

Disappointment and joy

Disappointment was evident on the faces of many of the same-sex couples who gathered for a news conference with their families and lawyers at the King County Administration Building in downtown Seattle.

Many hugged. Several dabbed away tears.

King County Executive Ron Sims, who forced the original lawsuit by inviting couples to sue him, said the decision would "not stand the test of time."

"Within your lifetimes and mine, the debate that we have today will be silent as society and the judicial and legislative processes fully embrace the fact that loving people, whether they are heterosexual or gay and lesbians, have the right to be married," Sims said.

At another news conference nearby, a coalition of groups opposed to gay marriage called the ruling a decisive victory for DOMA, and said they saw no need to push for a constitutional amendment that would ensure same-sex marriage would not be allowed.

"The court's ruling was strong and clear," said Kristen Waggoner, an attorney for gay-marriage opponents who intervened in the case.

Buckley Wild, 52, said though the ruling is a setback, he and other activists will continue to fight for what they believe is a fundamental right.

He recalled how in the past year, when he was undergoing major surgery, he had to lie to hospital staff. "I had to tell them my partner was my brother to get him into the ICU."

Seattle Times staff reporters Susan Gilmore, Jonathan Martin, Marsha King, Janet I. Tu, Charlotte Hsu and Anne Kim contributed to this report.

Copyright © 2006 The Seattle Times Company

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