Gay-marriage fight heats up after ruling

By Lornet Turnbull and Sanjay Bhatt
Seattle Times staff reporters

KEN LAMBERT / THE SEATTLE TIMES Barbara Steele, left, and Beth Reis talk to reporters last week after a judge ruled that same-sex couples should be allowed to marry. Steele and Reis, who have been together since 1977, are plaintiffs in a lawsuit challenging Washington's Defense of Marriage Act.

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When it takes up the question of gay marriage, the Washington state Supreme Court will be tackling one of the most significant social issues to come before it in a decade.

If the court upholds King County Superior Court Judge William Downing's ruling to legalize gay marriage, Washington could become the second state — after Massachusetts — to allow same-sex couples to wed.

The ruling last week, which is on hold pending appellate review, was the first successful challenge to a Defense of Marriage Act (DOMA), which 38 states have. But state Sen. Val Stevens, R-Arlington, the key sponsor of Washington's 1998 law, hopes to block what some say is the inevitability of court-sanctioned gay marriage.

Stevens predicts Downing's decision will energize voters here to ratify a state constitutional amendment limiting marriage to one man and one woman. She plans to introduce such an amendment in this state's next legislative session; it would require a two-thirds affirmative vote by both houses and then majority approval by voters.

Last week in Missouri, which, like Washington, has a DOMA prohibiting same-sex marriage, such an amendment won overwhelming support, passing everywhere except the city of St. Louis. Similar amendments barring gay marriage will appear on ballots in nine states this fall.

"All across the country, the people are voting one way and the courts are going another," said Pastor Joe Fuiten, president of the Bothell-based Washington Evangelicals for Responsible Government, which intervened in the King County case in opposition to same-sex marriage. "What we are seeing are very liberal, activist judges out to impose their will on society — whether society wants it or not."

On the other side are people who view the issue as a civil-rights question.

Rev. Monica Corsaro, an ecumenical campus minister at the University of Washington and a steering-committee member of the Religious Coalition for Marriage Equity, said, "I don't think we are redefining what marriage is. Marriage is between two consenting, loving adults that are making a commitment to one another.

"By tradition's sake we've defined it [as] between a man and a woman. That's not what marriage is about."

Pressure on judges
 
While Downing's ruling noted that public attitudes toward homosexuality are changing, a majority of Americans still say they oppose gay marriage. In a statewide poll conducted in March for The Seattle Times, slightly more than half the respondents said gay and lesbian couples should not have the right to marry.

Missouri showed that the issue can attract voters to the polls, and some say that in battleground states such as Oregon, it could affect the presidential election. In Washington, it may well resonate as voters prepare to elect a new attorney general who may have to defend state law, justices who may decide the case and legislators who may have the final word.

"On difficult issues like this, candidates prefer to stay mum or have someone else as the responsible party because it's so inflammatory and so contentious," said UW political-science professor David Olson. "We're going to see a good deal of demands for candidates to take a position on the issue."

For judges, that's tough. Phil Talmadge, a local attorney and former Supreme Court justice, said that while judges have more leeway than they used to in political campaigns, "any hint by a judge as to how he or she might rule on this case is unethical," he said.

"Those are obvious grounds to be removed from the decision-making on this case."

Washington state, with three of its nine Supreme Court positions up for grabs this November, differs from Hawaii, Vermont and Massachusetts — where high courts have ruled in favor of gay marriage — in that its justices are elected rather than appointed.

"Our system of electing judges is relatively unique," said Lisa Brodoff, clinical professor of law at Seattle University School of Law. While Brodoff says it's unlikely that the Supreme Court will rule on gay marriage before the November election, the issue may put justices on the spot for future elections.

In his ruling last week, Downing noted that he couldn't let possible political ramifications affect his legal analysis. But he got a glimpse afterward of how strongly people feel about same-sex marriage when his office was flooded with e-mails and telephone calls — many from residents angry about his decision.

"I know this is an emotional, volatile issue," he said. "I never thought I'd be hearing from people directly."

"Brand-new" look at issue

Sometime this fall or early winter, two cases asking the same legal question about same-sex marriage will likely arrive as one before Washington's high court.

The case in which Downing ruled that gay couples could marry is known as Andersen v. Sims. It was filed against King County Executive Ron Sims by several gay couples who were denied marriage licenses. Sims supports gay marriage and had invited the legal challenge.

The King County case will merge with a similar one, Castle v. State, now before Thurston County Judge Richard Hicks, who is expected to hear and rule on it Sept. 2.

Brodoff says it will be one of the most significant constitutional questions taken up by the court.

"Certainly not in the last decade have we seen a case that has addressed such an important and far-reaching social issue," she said.

In deciding whether two people of the same sex have a constitutional right to marry, Washington's nine justices won't be wandering the legal backwoods: From Vermont to Hawaii, courts have weighed in on this divisive question.

"Every single state supreme court that has heard this case has found the [state] constitution does not support denying the benefit of marriage to people based on their status," Brodoff said.

"The weight of legal opinion here is very strong," she said.

But she adds that while the justices will consider the legal landscape, they're not bound by any decision — pro or con — from anywhere.

"They owe no deference to any prior ruling," said Brodoff. "They will consider this case brand-new."

Still, two rulings in 2001 may offer a clue to how the court could decide:

• In Vasquez v. Hawthorne, the court ruled in a 7-2 split that a Puyallup man's 30-year relationship with his gay partner was enough like a marriage to grant him a share of the deceased partner's estate.

• And in Heinsma v. City of Vancouver, the court in an 8-1 ruling said the city had a right to continue providing health benefits to domestic partners of city employees, including same-sex partners.

"While neither of these cases goes to constitutional analysis, this court has shown it's willing to come out and say that gays and lesbians are entitled to equal benefits and protections of the law," Brodoff said.

Lloyd Hara, who was King County auditor in 1971 when he was sued by a gay couple after refusing them a marriage license, said he's glad the matter will finally be settled by the Supreme Court.

Hara said that 30 years ago he was following the advice of legal counsel in a case that led to the state's first same-sex marriage suit, Singer v. Hara. In that case, the State Court of Appeals ruled that Washington's Equal Rights Amendment did not apply to same-sex marriage and that the purpose of marriage was for procreation.

Today, Hara said he doesn't understand why gay marriage is still such a big deal.

"Why do we keep putting clouds over these people?" Hara asked. "We need once and for all to test the constitutionality of this issue."

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