OLYMPIA – Washington’s high court narrowly preserved the state’s ban on same-sex marriage Wednesday.
It also raised the possibility that a law allowing same-sex couples to wed could be written to withstand legal challenge.
By a 5-4 margin, the state Supreme Court upheld the constitutionality of the 1998 law defining marriage as a union between a man and a woman. The court ruled that definition is not discriminatory and the Legislature had a “rational basis” for making it law.
“We conclude that limiting marriage to opposite-sex couples furthers the state’s interests in procreation and encouraging families with a mother and father and children biologically related to both,” Justice Barbara Madsen wrote in the lead opinion for the majority.
The decision issued at 8 a.m. delighted defenders and angered opponents of the law known as the Defense of Marriage Act.
One gay state lawmaker said he will push a law legalizing same-sex marriage while Gov. Chris Gregoire sounded supportive of something short of marriage, perhaps civil unions.
“I’m just elated to know that the court saw the right thing to do, and they did it,” said state Sen. Val Stevens, R-Arlington. She helped write the state law, and was one of the named defendants in the case.
“This in my mind upholds what the families of Washington want marriage defined to look like,” she said.
“It is a setback,” said Lisa Stone, executive director of the Northwest Women’s Law Center that represented eight same-sex couples in the case.
“It’s not saying you can never have equality. It says we’re stuck with the current law,” she said.
Rep. Ed Murray, D-Seattle, one of four openly homosexual state lawmakers, called the decision “disappointing.” He said if he wins his campaign for state Senate this fall he’ll introduce marriage legislation in 2007.
Gregoire didn’t comment on the court’s ruling except to say she respects it. She did for the first time share her views on the subject with reporters and left the impression she could endorse civil unions, if not marriage for same-sex couples.
She described marriage as a sacrament of her Catholic faith that the state should not involve itself in regulating. However, she said, people should all enjoy the same rights, including the ability to marry.
“I do not believe the state should be in the business of discrimination,” she said.
Wednesday’s court decision, 16 months in the making, is a menagerie of six opinions laced with emotion.
The five in the majority differed on the legal reasoning behind the judgment, and the lead dissenter rebuked her colleagues, all but calling them bigots.
Madsen was joined by Justices Charles Johnson and Gary Alexander in the lead opinion that centered on ensuring adequate judicial restraint.
The majority of justices stressed that they had to defer to the Legislature in the writing of the laws and focus on whether the prohibition on same-sex marriages had a “rational” basis that met the tests of constitutionality. It did, they found.
Disagreeing with the rationale of the law is not grounds for striking it down, they said. That would be an inappropriate use of judicial power.
“We see no reason, however, why the Legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington,” she wrote.
Justices James Johnson and Richard Sanders concurred in a separate opinion.
They said the law is “justified” because it serves a “compelling governmental interest in preserving the institution of marriage, as well as the healthy families and children it promotes.
“This conclusion may not be changed by mere passage of time or currents of public favor and surely not changed by courts,” Johnson wrote.
Justice Mary Fairhurst wrote a blistering dissent, saying the justices who upheld the law “condone blatant discrimination against Washington’s gay and lesbian citizens … while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests.”
She termed the law “irrational” and the product of “animus toward homosexuals” by lawmakers, a powerful reason enough for throwing it out.
Joining Fairhurst in the dissent were Justices Sandra Owens, Bobbe Bridge and Tom Chambers.
The court’s recognition of the Legislature’s prerogative to write the laws pleased Brooke Taylor, president of the Washington State Bar Association. The association did not take sides in the case.
“It is a really good example of the rule of law and the separation of powers,” he said. “The court is making it clear it does not see itself as the ultimate decision maker on this matter of public policy.”
Stone of Northwest Women’s Law Center disagreed. She said the court avoided its obligation to make sure the constitutional rights of individuals are protected.
The decision leaves Massachusetts as the only state in the nation permitting same-sex marriages.
Washington lawmakers passed the Defense of Marriage Act in 1998. Former Gov. Gary Locke vetoed and lawmakers overrode his veto.
In March 2004, eight couples sued King County for refusing to issue them marriage licenses. A month later, 11 couples filed suit in Thurston County to obtain marriage licenses or have their marriages recognized under state law.
Decisions issued in August 2004 in King County and a month later in Thurston County concluded that the state’s law barring same-sex couples from marriage violated the state’s guarantee of equal protection for all people.
Stevens was part of a group of lawmakers and interest groups who appealed those rulings to the state Supreme Court.
She knows the fight is not over.
“Certainly the gay and lesbian community has a very, very aggressive agenda,” she said. “They are not going to let this die. They have to somehow get legitimacy, and that’s why they want to tear down what is an institution of our society.”
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