Nine justices, six opinions, no consensus

In what was anticipated as perhaps the biggest civil-rights decision of a generation, Wednesday's state Supreme Court ruling upholding a ban on gay marriage came out muted and in places muddled.

It's unlikely to become a precedent-setting landmark.

The decision largely "treads water" on any important constitutional issues, said Hugh Spitzer, an attorney, law professor and gay-marriage advocate.

That's primarily because of the fractured package of six opinions the nine justices released. To one justice, that's a sign of the court's unwillingness to compromise and even its tendency to view compromise as a weakness.

"The culture on my court is everyone expresses themselves and it's not principled to compromise," Justice Tom Chambers, who voted to overturn the gay-marriage ban and wrote his own dissent, said in an interview.

"The outcome and the law should be clear and predictable, and when you have these fractured opinions, it's not that way," he said.

Deputy Solicitor General Bill Collins, who defended the 1998 Defense of Marriage Act (DOMA) before the court, won the case Wednesday, but said the long-term impact of the victory is unclear.

"You get the result but you don't have a nice, neat opinion that you can cite in another case," Collins said.

Lawyers and lower-court judges like clear, unified messages from the state's highest court.

"The court has greater authority and greater legitimacy when it speaks with fewer voices," said Seattle University Law School professor Julie Shapiro, who helped the gay couples' legal team in the case.

Deference to lawmakers

Justice Barbara Madsen, who wrote the lead opinion, said she would have preferred a less-fractured set of rulings.

"I did what I could do to make it straightforward and clear," Madsen said in an interview. "Obviously, from a personal point of view I might have liked a different outcome."

But she thinks there were some clear precedents in the string of opinions. One she mentioned is the "rational basis standard." That's essentially the test the court applies to see if the Legislature acted rationally in passing a piece of legislation.

As written by Madsen, the rule gave the Legislature a lot of deference and trusts that lawmakers knew what they were doing.

"In short, while the Legislature was entitled to rely on the arguments and studies presented to the Legislature, this court can and must do no more than assure itself that the rational basis standard is satisfied," Madsen wrote.

She mentioned the deferential standard so many times in the opinion that at one point she wrote, "And at the risk of sounding monotonous, we repeat that the rational basis standard is extremely deferential."

Even some members of the court who ordinarily aren't so deferential were willing to be in this case.

"It was reasonable for the Washington Legislature to conclude that the biological nature of one man and one woman as a reproductive unit provides an objective and non-arbitrary basis for defining marriage," said a concurring opinion written by Justice James Johnson and signed also by Justice Richard Sanders.

Sanders said he thought about whether he was contradicting his long-standing position that often makes him the voice against deference to the Legislature.

"I don't think so," he said in an interview. "I think that if I thought that someone's constitutional rights were being violated, even if it was a singular, unpopular person, I'd be the first to strike down the legislative enactment."

But in this case, he said, there was no fundamental right to same-sex marriage that was violated by the ban.

"Blatant discrimination"

The dissent by Justice Mary Fairhurst said the court found "no rational basis for denying same-sex couples the right to marry."

She said justices ruling to uphold the law "condone blatant discrimination against Washington's gay and lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests."

Fairhurst's assertion that the marriage ban was motivated by anti-gay bigotry brought a sharp reprimand from Madsen, who wrote, "In assuming that everyone who voted for DOMA is a bigot, Justice Fairhurst's dissent is not only wrong, it sadly oversteps the bounds of judicial review."

In an interview, Chief Justice Gerry Alexander said he'd rather keep those sorts of exchanges out of the court's written opinions.

Several observers said they expected the court to uphold the marriage ban, but then state clearly that the Legislature should address the underlying issue of same-sex couples being denied benefits equal to married couples. That could lead to the creation of civil unions for gays and lesbians.

"It's certainly possible to answer, 'No, you don't get marriage but yes, you get the benefits,' " Shapiro said. "It didn't occur to me that the court wouldn't answer the benefits question."

Spitzer said the court wasn't able to.

"Nobody could get the votes for that kind of compromise, so they wound up with what is a fairly limited and weak lead opinion," he said.

"I think in 25 years everybody will look back at this decision and they will view it as being weird, in the same way we view old decisions that upheld laws against blacks and whites marrying," Spitzer said.

University of Washington Law School professor Lisa Kelly said she reads Madsen's opinion as an invitation for a legal challenge on the equal-benefits issue.

She said a suit could be brought by a same-sex couple who had been denied a benefit given to a married couple, such as inheriting a spouse's pension fund, "in order to push more toward a civil-union statute."

Justice Susan Owens, one of three justices who did not write their own opinion, said the splintered court is merely reflecting society.

"It was a difficult issue, something the citizenry is split on," she said. "I don't know why our court should be any different. Our diverse court reflects our diverse society's views.

"We pretty well had it all covered."

Alexander looked at the pile of opinions Wednesday and said, "It's kind of the great American novel here."

David Postman: 360-236-8267 or dpostman@seattletimes.com