OLYMPIA, Wash. (ABP) — In the latest of several setbacks for gay-rights activists, Washington's Supreme Court narrowly voted to uphold that state's ban on same-sex marriage July 26.
In a 5-4 decision, the state's highest court ruled against two groups of gay couples that had sued, claiming a state law defining marriage in heterosexual-only terms violated the Washington Constitution.
The decision capped three weeks of setbacks for gay-rights proponents. Earlier in the month, New York's highest court issued a similar ruling upholding the state's right to deny marriage licenses to gay couples. Courts in Georgia, Nebraska and Tennessee have since upheld or given the go-ahead to state constitutional bans on same-sex marriage.
The complicated Washington ruling produced six separate opinions totaling more than 200 pages. It surprised people on both sides of the gay-marriage debate — Washington's high court was one of the nation's likeliest to uphold marriage rights for same-sex couples, according to some experts.
The court's plurality said the gay couples who sued had “not established that they are members of a [constitutionally] suspect class [that deserves protection] or that they have a fundamental right to marriage that includes the right to marry a person of the same sex.”
Justice Barbara Madsen, who wrote the plurality opinion, said it meant that the state's lawmakers, in passing the 1998 Defense of Marriage Act, simply needed a rational basis for encouraging heterosexual marriage.
“Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents,” she said. “Allowing same-sex couples to marry does not, in the legislature's view, further these purposes.”
The dissenting justices said their colleagues had framed the question incorrectly in that the legislature didn't need to prove they had a rational basis for encouraging heterosexual marriage. Rather, the state should prove it has a good reason for denying marriage rights to same-sex couples.
The judges who agreed with the gay-marriage ban “condone blatant discrimination against Washington's gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests,” wrote Justice Mary Fairhurst, who was joined by the rest of the dissenters.
She continued: “DOMA in no way affects the right of opposite-sex couples to marry — the only intent and effect of DOMA was to explicitly deny same-sex couples the right to marry [emphasis hers]. Therefore, the question we are called upon to ask and answer here, which the plurality fails to do, is how excluding committed same-sex couples from the rights of civil marriage furthers any of the interests that the state has put forth.”
However, Madsen and the colleagues who joined her plurality opinion — Chief Justice Gerry Alexander and Justice Charles Johnson — suggested that the state's legislators have the authority to legalize same-sex marriage or marriage-like unions. They may want to examine that possibility, she wrote, because “many day-to-day decisions that are routine for married couples are more complex, more agonizing and more costly for same-sex couples.”
But justices James Johnson and Richard Sanders, in a separate opinion concurring in the judgment only, warned legislators against such a decision and more actively opposed the idea of legalizing gay marriage — whether judicially or legislatively.
“We conclude that the legislature was justified in enacting DOMA to clarify and reaffirm Washington marriage law by a compelling governmental interest in preserving the institution of marriage, as well as the healthy families and children it promotes,” Johnson wrote. “This conclusion may not be changed by mere passage of time or currents of public favor and surely not changed by courts.”
Gay-marriage opponents in Washington rejoiced at the ruling. “This was a God moment. I don't want anyone to think otherwise,” Ken Hutcherson, pastor at Antioch Bible Church in suburban Seattle, told the Seattle Post-Intelligencer. “No one expected this court to rule this way.”
Gay-rights proponents in Washington vowed to fight for equal marriage rights legislatively. According to the Post-Intelligencer, hundreds of supporters of gay marriage gathered at Seattle's historic First Baptist Church the night of July 26 to commiserate over the ruling and plan future action.
“Marriage is a civil right. Lesbian and gay equality is fundamental to a society where all citizens are treated equally,” said Roger Leishman, an attorney for the American Civil Liberties Union. “It's just a Wednesday. Tomorrow will be Thursday, and we'll move forward.”
The Washington court heard oral arguments more than a year ago in the two cases that were combined in the decision. They are Andersen v. King County (No. 75934-1) and Castle v. State of Washington (No. 75956-1).
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