Recognizing gay marriages may be left to Legislature

By Lornet Turnbull
Seattle Times staff reporter

E-mail this article Print this article Search archive Most read articles Most e-mailed articles

Other links State of Marriage

Assistant Attorney General William Collins, arguing before Thurston County Superior Court Judge Richard Hicks, suggested that the court might uphold the ban, but the Legislature could consider allowing same-sex civil unions.

Collins told the court that the claims of 11 couples suing the state for the right to marry come down to two questions:

The first is whether Washington's constitution requires the state to extend to same-sex couples benefits and rights identical to those offered to heterosexual married people, Collins argued.

The second is whether the state is required to call that relationship a "marriage."

Across the country, "courts have responded to these two distinct questions in different ways," he said.

In Massachusetts last November, the state Supreme Court gave the Legislature 180 days to include gay couples in the state's marriage laws.

Four years earlier, the Vermont high court gave its Legislature the option of creating civil unions, which confer the benefits and rights of marriage — but not the name.

Hicks asked: "Can I tell the Legislature what to do?"

As the courtroom audience chuckled, Collins responded: "You probably can't tell the Legislature what to do.

"But you could let them know they have an option. You could let them know that it would not be unconstitutional to establish civil unions that gave gay couples the right to benefits."
 
Hicks said he expects to post his ruling on the court's Web site within a week.

Yesterday's hearing was the second challenge this summer of the state's ban on same-sex marriage.

A month ago, King County Superior Court Judge William Downing struck down that ban, which the Legislature passed overwhelmingly in 1998.

In that case, several Seattle-area couples had sued King County. The case heard yesterday was brought by the American Civil Liberties Union against the state.

Ultimately, both cases likely will be merged and heard by the state Supreme Court.

Paul Lawrence, attorney with the ACLU of Washington, argued that gays and lesbians in this state face discrimination, because while one man and one woman can marry, two men and two women cannot.

Secondly, Lawrence said, the state confers a host of benefits on married couples — legal, social and economic — that are denied gay couples because they can't marry.

"There's no dispute that the relationships of the 11 couples before this court ... are no different from the relationships of married heterosexual couples who are allowed to marry under Washington law," he said.

"The issue is whether or not the state can justify, on a constitutionally sufficient basis, the discriminatory treatment of a class of citizens."

Collins told the court there's no history of gay marriage in this country. The marriage of heterosexual couples is linked to procreation in a way that same-sex unions can't be, he said.

He also noted that 38 states have Defense of Marriage Act statutes, prohibiting marriage between two men or two women.

The suggestion that gay couples should be offered marriagelike recognition of their unions is not new.

In a March letter to lawmakers, Attorney General Christine Gregoire wrote, "A legislative decision to extend benefits either in the form of inclusion within the marriage laws or in a parallel but different form of civil union or domestic partnership is defensible."

But Brenda Bauer and Celia Castle of Seattle, lead plaintiffs in the case, said anything short of marriage isn't marriage.

The women were married in Oregon last spring and would like their union recognized in their home state.

"We've not found separate to be equal," Bauer said.

One of their daughters, Nicola, 12, said she doesn't see her family as different from her friends' families — whether they have two heterosexual parents or single parents — and can't understand why they are treated differently.

"What they're fighting over is the right to use the word marriage," she said.

"That seems so silly to me."

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