This week, the state Supreme Court will hear oral arguments on whether Washington's Defense of Marriage Act infringes on fundamental rights of marriage
By Lornet Turnbull
SeattleTimes staff reporter
Lauri Conner and Leja Wright, together now for four years, are trying to have a child.
It was a decision the women made when they committed themselves to each other.
The couple would also like to marry, but whether they can ever legally do that in Washington state depends on what unfolds Tuesday in a courtroom in Olympia.
The state Supreme Court will hear oral arguments on whether the state constitution entitles the Rainier Beach couple and 18 other gay and lesbian couples to marry. All are challenging Washington's Defense of Marriage Act, which limits marriage to a union between a man and a woman.
If the justices rule as the couples hope, Washington could become the second state in the country, after Massachusetts, to grant gays the same marital rights as heterosexuals. And it would be the only place — at least for a time — where gays and lesbians from any state could marry each other.A win by the defendants, King County and the state of Washington, could leave gays who want to marry at a kind of legal dead end. "We're asking the court to do the right thing, but we're also asking it to do something that ultimately will find broad acceptance in this state and across the United States," said Paul Lawrence, an attorney for the American Civil Liberties Union who will argue before the nine justices on Tuesday.
The high court could render a decision as early as June, but most likely it won't come until the fall, observers say.
The significance of Tuesday's hearing at the Temple of Justice in Olympia is not lost on those who feel they have a stake in the final decision, such as Conner and Wright.
"If we are really going to try to spread freedom around the world, it seems appropriate that we look in our back yard first," Conner said.
Those who oppose gay marriage disagree. "It's not a human-rights issue," said the Rev. Joseph Fuiten, president of Washington Evangelicals for Responsible Government. "It's not a civil-rights issue. If the justices strictly interpret the constitution, there's no way they will create same-sex marriages."
About 1,500 pages of legal briefs have been entered in the case, including more than 20 separate briefs filed by an assortment of interest groups: mental-health professionals, end-of-life organizations, civil-rights groups, labor unions, history scholars, lawmakers and business and religious organizations.
Divided down the linesFew social issues in recent years have provoked this level of divisiveness. On the question of gay marriage, Americans are torn along religious, political and generational lines. A Seattle Times poll last spring found slightly more than 50 percent of those surveyed said same-sex couples should be denied the right to marry, while 44 percent supported gay marriage.
A year ago Tuesday, eight King County couples sued King County after being denied marriage licenses under the state Defense of Marriage Act (DOMA). The act, patterned after a federal law signed by President Clinton, was passed by the Washington Legislature in 1998.
A month after the first lawsuit was filed, 11 more couples — some of whom had married elsewhere — sued the state for the right to marry or have their marriages recognized.
That summer, in a pair of rulings that were hailed by gay-rights advocates, Superior Court judges in King and Thurston counties struck down the state DOMA. An appeal by the county and the state set the stage for the Supreme Court to answer the gay-marriage question.
The cases — Andersen v. King County and Castle v. State of Washington — have been consolidated and will be argued as one before the high court.
A fundamental right?The couples who filed suit have built their case around the basic premise that marriage is a fundamental right, and that by denying gays that right, DOMA violates the privileges and immunities clause of the state constitution.
The so-called equal-treatment clause reads: "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."
"The whole point of having constitutional rights is to protect the rights of individuals or minority groups," Lawrence said. "The constitution prohibits the granting to one class of citizens of the state the privilege of marriage while denying that to another class."
In defending DOMA, the state must prove the statute can pass the so-called rational review test, by showing that it serves a legitimate state purpose.
The couples contend there is none, that DOMA is discriminatory.
William Collins, senior assistant attorney general who will argue the state's case, says: "In our view, the rational basis for the law is the fact that only a sexual union between a man and a woman can result in children."
Collins recognizes that such a union doesn't always produce children and that for decades gay and lesbian couples have been bearing and raising children.
While those filing briefs in support of DOMA argue that a household headed by one man and one woman is the best and most suitable setting to raise a child, Collins admitted the state can't make that claim because it already allows gay couples to adopt children.
"There's a unique relationship between men and women because that sexual context produces children," he said. Such a relationship "channeled into the institution of marriage helps guarantee any children that result will come into an environment designed to take care of them."
The state will argue that the Legislature should have a final say in how marital rights and benefits are allowed to gay couples.
"We have argued that if the court finds it's unconstitutional not to provide equal benefits to same-sex couples, that the Legislature be given the opportunity to decide whether it wants to deliver those rights and benefits through marriage, or something else, like civil unions," Collins said.
Peter Nicolas, a University of Washington law professor who teaches a course in sexual-orientation law, said: "Really, what it boils down to is whether this law infringes on fundamental rights of marriage."
In deciding the case, the plaintiffs point out that there's only one question before the high court: Is current state law constitutional?
"If the court answers no, then the Defense of Marriage Act cannot be enforced," said Pat Novotny, an attorney with the Northwest Women's Law Center, which along with Lambda Legal sued King County on the couples' behalf.
Hugh Spitzer, a Seattle attorney who teaches state constitutional law at the UW, said the court could remove the current reference to men and women in DOMA and leave the rest of the statute intact.
But some opponents of gay marriage say by redefining marriage, the state could open the door to other types of unions.
"Rewriting the state's marriage laws could put Washington on a slippery slope," said Theresa Schrempp, a Seattle probate attorney who wrote an amicus (friend of the court) brief on behalf of Concerned Women of America and against gay marriage.
"The state has a profound interest in regulating the institution of marriage in this state to not allow polygamy, bigamy, consanguinity [marriage between blood relatives]," she said. If the state constitutionally recognizes gay marriage, "how can you then ban polygamy, when [polygamists] can make a much stronger argument about practicing their religion?"
Legal challenges by same-sex couples are pending in seven other states.
Other legal challenges
Historically, gays have found that their strongest allies are in the courts and not necessarily among their neighbors. That became evident in November, when voters in 11 states, including Oregon, approved constitutional bans on gay marriage, joining six other states that had already done so.
Meanwhile, lawmakers in 11 other states are considering similar bans that could be presented to voters over the next two years.
"Gays and lesbians are not the only minority who have looked to the courts to protect their rights," Novotny said.
"We've gotten so accustomed to the idea of racial equality; we know, for example, that the Legislature can't pass a law that black children can't go to this or that school. That's the same kind of relief that gays and lesbians are looking to the courts for."
Lornet Turnbull: 206-464-2420
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