Superior Court hears argument for gay couples' right to wed

By Lornet Turnbull
Seattle Times staff reporter

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The nearly three-hour hearing was the first stop on the judicial fast track for this case, which is sure to have social, legal and political impact well beyond Seattle and the state.

Arguing before King County Superior Court Judge William Downing in defense of the status quo were the county, the state and a group of lawmakers and clergy that successfully intervened in the case.

This wasn't new territory: Yesterday's arguments for and against gay marriage have and continue to be heard in courtrooms and legislative halls across the country as the gay-rights issue has heated up.

Ultimately, the King County case and another filed by a separate group of gay couples against the state will merge before reaching the state Supreme Court.

Represented by the Northwest Women's Law Center and Lambda Legal, the couples argued that the right to marry is recognized by both the state and U.S. Supreme Courts and guaranteed by the state's constitution.

"The essence of the right to marry is the right to choose whom you want to marry," said Bradley H. Bagshaw, an attorney for the couples.

"This case begins and ends and is over when you find that marriage is a fundamental right," he told the judge.

Attorneys for the state, the county and the intervenors argued that the state courts and the people through their legislative leaders already have spoken on this matter.

"I am disappointed that we have to be here today on a simple, well-precedented matter that the people previously defined as being a union between a man and a woman," Sen. Val Stevens, R-Arlington, said after the hearing. Stevens is one of two lawmakers who intervened in the case.

Downing afforded the participants wide berth, not limiting their rebuttals. He promised a ruling no earlier than Tuesday and no later than Aug. 6.
 
The eight couples in this case have been together between five and 26 years. Many have raised children; some still are raising them.

Establishing for them the right to marry, he told the judge, will have the same significance that Loving v. Virginia did nearly 40 years ago when that decision struck down bans on interracial marriages.

"Interracial marriage was marriage then just as same-sex marriage is marriage now," he said.

The defendants pointed to overwhelming passage in the Legislature of the Defense of Marriage Act six years ago and to the 1974 case, Singer v. Hara, in which the State Court of Appeals ruled that the state's Equal Rights Amendment to the constitution did not apply to two gay men who sought to marry.

The Equal Rights Amendment, passed two years before the Singer decision, prohibited any law granting privileges to certain classes of citizens without applying them equally to everyone.

"Our view on the law is clear here; there's no history and tradition on same-sex marriage," Darren E. Carnell, senior deputy prosecuting attorney for King County said. "Singer should control the outcome of this case."

A large part of the defendants' case hinged on the state's interest in furthering procreation.

"Civilization depends on the population replenishing itself," said Steven T. O'Ban, an attorney representing the interveners.

Furthermore, he said, traditional marriage teaches children proper role models in relationships.

"The state has an interest in maintaining a clear identification of marriage," he said.

William Collins, assistant attorney general, said most states with laws banning interracial marriage already had rescinded them by the time the high court ruled in Loving v. Virginia. "The weight of the country was going the other way," he said.

"In this case it's just the opposite," pointing out that 38 states now have Defense of Marriage laws in place.

Still, Collins requested that if the court does find state law to be constitutionally invalid, the Legislature be given the opportunity to address the issue.

"The title of marriage is not something (gay couples) are required to have even if they are required to have the benefits," he said.

But Bagshaw argued that a separate-but-equal treatment is not equal at all.

David Serkin-Poole, and his partner Michael, plaintiffs in the case, agree: "We don't want some parallel version of marriage. Show me one family that would be hurt if Michael and I get married."

Doug Wheeler, a member of a coalition of 42 black pastors who intervened in the case, said comparing gay marriage to interracial marriage and to civil rights disturbs him. Interracial marriage was still marriage between a man and a woman, he pointed out.

"We're not against gays receiving benefits, and we've never said we were," he said. "What we favor is establishing a solid foundation for traditional marriage and building from there, together."

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