Gay-marriage case: 15 months, no ruling

Any day now.

For a time, it was the popular refrain of lawyers responding to questions about when a decision was likely in the gay-marriage case argued more than a year ago before the state Supreme Court.

Lately, "any day now" has given way to a new mantra: "anybody's guess."

"Our attorneys are no longer allowed to tell people a decision is expected 'any day,' " said Lisa Stone, executive director of the Northwest Women's Law Center, whose attorneys were involved in arguing the case before the court.

"This is an extremely important decision that will be analyzed and dissected all over the country and the world. From our perspective, the justices should take all the time they need — as long as they get it right."

Nineteen gay and lesbian couples have challenged the constitutionality of Washington's Defense of Marriage Act (DOMA), which limits marriage to one man and one woman.

From gay-rights supporters to religious conservatives and family-rights groups across the country, many have been watching Olympia for an outcome in the case. It represents one of the most important social questions to confront the state's high court in a decade and is one of the most controversial.

Recent national debate on an amendment to the U.S. Constitution that would ban gay marriage has focused new attention on the case here, with the U.S. Senate on Wednesday voting 49-48 against the amendment.

Here in Washington state, if the court strikes down the Defense of Marriage Act, Washington would become the second state in the country, after Massachusetts, to offer same-sex marriages and the first to extend the benefit to those who live outside the state.

From the plaintiff couples to the attorneys, those with a direct interest in the case have spent much of the past year in limbo — reshuffling plans so they would be available when a decision is rendered, whenever it might be.

Rampant speculation about why 15 months have passed without a ruling have ranged from the slightly absurd (the justices don't want Washington to be only the second state with gay marriage) to the more political (they're waiting until after the November elections).

Members of the court do not discuss pending cases, but some legal and constitutional experts, including a former justice of the high court, say the length of deliberation reflects the complexity of the case and suggests a ruling likely to involve multiple opinions.

"This is such an important decision the court is making, and getting a solid majority may be taking time," said Lisa Brodoff, law professor at Seattle University. "Internally, there's likely a lot of lobbying going on."

In Massachusetts, which in 2004 became the first state to allow same-sex marriage, the court took more than eight months to issue a ruling — breaching its self-imposed deadline of 130 days.

In the end, that court was split 4-3 in granting gays the right to marry. Washington imposes a similar internal goal of one year, Brodoff noted. Phil Talmadge, a Seattle attorney and former Supreme Court justice, said he often tells clients that civil cases before the high court take at least six months, with 16 months — though unusual — possible. "This is a very controversial issue and it is likely a lot of justices will want their view reflected," he said.

Talmadge said the court is diligent about getting decisions out expeditiously. In fact, one justice is assigned that very task — to badger other justices about pending decisions.

Once a month, he said, that justice reports on how well everyone is doing on moving cases along, and "that could get a bit embarrassing for some."

"So there's a strong incentive for getting cases out."

Agony of delay

Experts see three possible outcomes in the case before the court: One upholds DOMA, another strikes it down and a third punts the matter to the Legislature.

Some opponents of gay marriage have already read doom into the long timeline, saying a ruling that would uphold existing law — the outcome they're hoping for — would have been reached and a decision rendered months ago.

And indeed, legal experts, including attorneys who have argued before the court, say rulings in cases with a clear majority — 9-0 or even 7-2 — are typically issued more quickly. Generally, it is the more divided cases that take longer, Brodoff noted.

"If they were going to uphold DOMA, that would have been an easier and quicker decision," she said. "On the other hand, if they were trying to convince some on the fence, that would take extra time."

Cheryl Haskins, executive director of Allies for Marriage and Children, a statewide organization formed to campaign around preserving DOMA, believes the delay is a clear signal of the court's leaning.

"The decision to uphold seems like it would be easier than one to strike it down," she said.

But Steve T. O'Ban, who represented a group of intervenors in the gay-marriage case, said the delay does not suggest defeat. "I've had cases that took over two years from oral argument to when a ruling was issued," he said. "This is one of the most important social-policy cases the court would have in a long time. I'm sure they want to get it right."

How it works

Each case that comes before the court is randomly assigned to a judge. In a conference following oral argument, that reporting judge makes a recommendation on how a case should be resolved and tries to get a majority of the court on his side.

If the judge succeeds, the first justice to disagree with him writes the dissenting or minority opinion. If the judge fails, then he or she writes the dissent.

Both drafts are circulated. In a case this controversial, experts say, both opinions can generate multiple dissenting and concurring opinions, which are also then circulated.

"You have opinions circulating to nine chambers," Talmadge explained. "It's time-intensive and a fairly slow process if there are multiple opinions."

Judges comment on opinions or adjust their own thinking to reflect an argument by a colleague, said Hugh Spitzer, an affiliate law professor at the University of Washington, who ran for a seat on the court in 1998.

He recalls a comment by Chief Justice Gerry Alexander that "every member of the court will have an opportunity to present his or her view on this issue," and says it offers a clue.

"The members of the court will want to make their reasoning as clear as possible," he said. "Different judges may reach similar results through different reasoning processes.

"One may want to emphasize privileges and immunities [which requires that privileges granted to one group be granted to all] and another equal protection. I wouldn't be surprised if there are nine separate opinions in this case," he said.

Spitzer said while judges bring their personal biases to each case they hear, they also know they "must have a legitimate legal basis, based on existing law, to reach the result they would like."

"The rule is if you can't get there based on existing law and logic, you have to change your position."

Politics in play?

Popular and persistent speculation surrounding the timing has been that the court wants to wait until after the November elections — for a time that would be less disruptive politically.

Three of the nine Supreme Court justices are up for election this year. Talmadge dismisses such speculation. The court is accustomed to controversial cases; justices confront them all the time, he says, adding, "It's not likely the kind of thing the court would single out for special attention."

Brodoff agrees, pointing out that two Superior Court justices — William Downing in King County and Richard Hicks in Thurston County — who are also elected have already issued decisions in this case that some consider unpopular. In 2004, both judges struck down DOMA.

And last November, the Supreme Court, in a hugely controversial 7-2 decision, placed the parental rights of those who help to raise a child on par with the rights of the child's biological parents.

"And that was before the election," Brodoff said. "We have to believe judges in the state are going to make the right decision — even if it means they're going to get a public reaction."

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