Gay-marriage advocates grapple with their next course of action

Like civil-rights crusaders of the 1960s, champions of gay rights have long looked to the courts to grant them what they believed they couldn't get elsewhere.

Judges, they believed, are charged with righting historic wrongs and delivering pure justice in a way voters with their own biases and the lawmakers beholden to them often would not.

And, indeed, the landmark civil-rights rulings of the past century bear them out: Brown v. Board of Education, which ordered school desegregation, and Loving v. Virginia, which later struck down laws banning interracial marriages.

But a string of recent court decisions, including last week's 5-4 Washington Supreme Court ruling that upheld the state's ban on same-sex marriages, suggests the judicial path may have failed them and that justices who have found themselves pilloried as activists will not deliver full salvation for gays after all.

Taken together, the decisions represent a body of case law that might make following Massachusetts' lead in allowing same-sex marriage that much more difficult for the handful of states still weighing the question.

"Years ago many lawyers thought that the courts were going to uniformly support the rights of same-sex couples — the way Canada has," said Hugh Spitzer, an affiliate professor at the University of Washington School of Law who sought a seat on the state Supreme Court eight years ago.

"They believed courts were going to be where the action was in terms of protecting the rights of gays. As it turns out, courts have gone in different ways on this."

"I'm convinced it's time to do what women did to gain the vote, what blacks did to secure civil rights," said Bill Dubay, a longtime gay-rights activist in Seattle. "We need to hit the streets and be noticed and not go away until we get what we want."

Gains lost as foes step up

The Massachusetts decision in 2003 granting gays the right to marry energized the gay-rights movement in a way nothing else in recent history had.

Coming on the heels of the U.S. Supreme Court ruling in Lawrence v. Texas that struck down sodomy laws, the Massachusetts decision gave gay-rights supporters a new kind of hope.

Those who had been part of the struggle from the beginning — men and women now in their middle years — began to think that marriage was possible in their lifetime.

"The strategies that have been pursued to achieve legal recognition for gays to marry have proceeded along multiple tracks over the last 30 years," said Marc Spindelman, associate professor of law at Ohio State University in Columbus, Ohio. "Some portion has been legislatively oriented, some judicial and some cultural — and there were victories and setbacks on all three fronts."

Massachusetts coming so soon after the Lawrence case "renewed this sense of hope and the possibility that the judicial track would be the track on which gay rights were delivered," said Spindelman.

"It became the decision in opening up the real possibility that judges would recognize the constitutional rights to equality that gays and lesbians had argued for."

But the euphoria of 2004 — marriages in San Francisco and Portland, and lawsuits challenging gay-marriage bans in a number of state courts — was tempered by a powerful response from evangelical groups and other proponents of traditional marriage.

Appalled by the audacity of the spree of marriages, which were later nullified, and by decisions from what they called activist judges, foes of same-sex marriage rallied their troops, persuading voters in about a dozen states that year, including Oregon, to pass constitutional bans to gay marriage.

Today 20 states have constitutional bans to gay marriage, and voters in seven other states will vote on amending their constitutions to ban gay marriage this November.

Meanwhile, legislatures in more than three dozen states have passed laws banning gay marriage. Even gains in Massachusetts could be short-lived. Earlier this month, the very court that granted gay marriage in Massachusetts three years ago ruled unanimously that a constitutional amendment to ban same-sex marriages can be put before voters for enactment.

And a federal court in Nebraska upheld that state's constitutional amendment banning same-sex marriage, considered the broadest and most restrictive of those passed so far.

It was a bad month for gay-rights advocates.

But while the setbacks have hurt, activists still held high hopes for a win in Washington, where two lower-court judges had already ruled that the 1998 law banning same-sex marriage was unconstitutional.

Paul Barwick, who along with his partner in the landmark case, Singer v. Hara, were the first gay couple in Washington to sue for the right to marry in 1972, said he was prepared for the high court's decision last week to go either way.

Speaking from San Francisco where he now lives, he said, "In 2006, America under the Bush administration and the Republican party that have bashed gays, we're not in that place yet."

Dubay, the Seattle activist, said, "Up until last week, I thought marriage was quite likely here. I was quite wrong.

"I know now that I'll never marry."

Look to Legislature

Most of the justices in the Washington decision last week, and those in a ruling by New York's highest court two weeks earlier that also rejected gays' claims to marriage, suggested that same-sex couples may be better served if they looked not to the courts but to the Legislature to resolve this issue for them.

Jordon Lorence, senior attorney with the Arizona-based Alliance Defense Fund, which opposes gay marriage, said judges have signaled that these issues are better settled in the court of public opinion.

"Twenty states and counting have passed constitutional amendments," he said. "Increasingly there's a growing reluctance by courts to buy the legal arguments that proponents of gay marriage are putting forward.

"With this string of court defeats for gay marriage, the whole political, social context of this has shifted."

David Skover, a constitutional-law professor at Seattle University, said he believes the courts have let gays down.

"In the context of marriage, there has been an overwhelming societal prejudice against lesbians and gay men," he said. "With that historical precedent, there's no question where the courts' institutional duty lay. But our courts have failed to shoulder — with fortitude and courage — their special role as protectorate of minority rights."

Vow to fight

Following last week's decision, same-sex advocates in Washington vowed to pursue legislation to bring "marriage equality" to the state.

The resolve was as much for the disappointed supporters as it was part of any real strategy because it could be years before such a measure would pass the Legislature.

After all, it took three decades for that same body to extend civil rights to gays — protecting them against housing and employment discrimination. Washington is only the 17th state to offer civil rights for gays.

"It's true that in some places there's not been a lot of energy on this in the Legislature, as [there has been] in the court or the court of public opinion," said Evan Wolfson, director of Freedom to Marry, a gay-rights advocacy group in New York and author of a book called "Why Marriage Matters."

"Too often we've seen legislatures hide behind the courts in the hope that the courts will extend the kind of fairness and equality" they can't or won't extend, he said.

Spindelman, the Ohio State professor of law, said he sees reason for hope in the Washington decision.

"If the court decision is a ruling for today, it leaves open the possibility, and in a sense highlights the prospects, that in time it will reverse itself."

And Julie Shapiro, law professor and constitutional expert at Seattle University, said gays, as part of an overall strategy to educate the public, can capitalize on the feeling among some in the straight community that justice has not been served.

"These issues will come down to the work of organizing and outreach and of working within communities and neighborhoods and synagogues and all that," she said.

"The fact that more people are aware of it and angry about it is something they can work with."

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