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No wedding bells in Washington State

No wedding bells in Washington State
State Supreme Court upholds ban on marriage by same-sex couples by Robert Raketty - SGN Staff Writer The debate over marriage equality for same-sex couples arrived in Washington State this week as our state's highest court ruled in a narrow 5-4 decision to uphold a law passed in 1998 that defines marriage as between a man and a woman. The Court issued six separate opinions in all, revealing a diversity of thought about the various legal issues before the Court. "There is evidence that times are changing, but we cannot conclude that at this time the people of Washington are entitled to hold an expectation that they may marry a person of the same-sex.," wrote Justice Barbara Madsen in the lead opinion. The Legislature was entitled to believe that "child-rearing in a 'traditional' nuclear family" would "promote and encourage stable families," she reasoned. The ruling drew the ire of the region's Lesbian, Gay, Bisexual and Transgender community and its allies who were critical of the Court's reasoning. Former Seattle Municipal Court Judge Anne Levinson is one of the many critics of Madsen's opinion. "Justice Madsen's opinion was poorly reasoned and not well written and will have a devastating impact on thousands of families across this state," she told the Seattle Gay News on Wednesday. "The courts are supposed to stand up for those who are vulnerable, those who are disenfranchised and those who do not have equal rights. The message today by Justice Madsen and four of her colleagues, was - in my view - an abdication of the role the courts should play in our society." Lisa Stone, executive director of the Northwest Women's Law Center agreed. "Justice Madsen's decision was very legally conservative and cautious. I think she took as narrow an interpretation of the Courts role as she possibly could," she said. "She did of course refer to the discrimination that LGBT people face everyday, but she was so deferential to the Legislature that it was hard to discern her legal analysis entirely. It is more recitation than it is a legal analysis. "The lower courts, like Justice [Bobbe] Bridge, concluded that even under the most lenient test - the rational basis test - that DOMA doesn't further a state purpose. Justice Madsen framed the question before the Court so narrowly that the answer was an almost forgone conclusion even before she started." Chief Justice Gerry Alexander and Justice Charles Johnson joined Madsen, signing on to her opinion. However, Alexander also issued a separate concurring statement, in which he says that the couples failed to show that "Defense of Marriage Act" was unconstitutional and to conclude otherwise would infringe upon the role of the Legislature. Justice James Johnson also issued a separate concurring opinion, which applied different legal rationale, but came to the same conclusion that the law was indeed constitutional. Justice Richard Sanders concurred with Johnson's legal analysis. "A society mindful of the biologically unique nature of the marital relationship and its special capacity for procreation has ample justification for safeguarding this institution to promote procreation and a stable environment for raising children. Less stable homes equate to higher welfare and other burdens on the state," Johnson wrote. Justice Marry Fairhurst's dissenting opinion stated that the Court had no reason to uphold a "unconstitutional and unjust law" and there was "no rational basis for denying same-sex couples the right to marry." Justices Tom Chambers, Susan Owens and Bridge had also signed on to the opinion. "The plurality and concurrence 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 wrote. Jamie Pederson, an attorney for Lambda Legal, applauded Fairhurst's opinion. "The plurality framed the question as to whether the State could rationally think that allowing heterosexual couples to marry would promote the interests of children," he said. "Justice Fairhurst correctly stated that was not the right question. It is whether denying Gay and Lesbian couples the rights of marriage promotes the interests of children. There is no question that it doesn't. "Justice Fairhurst used a lot of the arguments that we brought to the Court. Really, she and her three colleagues understood how we as Gay and Lesbian people lacked protection because of their denial of access to marriage. It is clear from the language of her opinion that she was very frustrated by her inability to bring a fifth vote to that point of view and her sense of how that people in Washington remain unprotected and the irrationality of that." Owens and Chambers issued a separate dissent because they disagreed with Madsen's interpretation of the state constitution's "privileges and immunities" clause. They believed that DOMA singled out a single class of citizens for unfair treatment. "The proper question is whether marriage is a fundamental right that belongs to each of us by reason of our citizenship. Our founders would have answered that question with a resounding yes!" Chambers wrote. Bridge issued the most strongly worded of the decisions. She concluded that the DOMA "ought to be recognized for the discriminatory enactment that it is and [be] rejected as such." She also believed that future generations would look upon the decision with "with regret and even shame." She said that same-sex couples play important roles in everyday life, such as co-workers, neighbors and friends. "It is in these seemingly mundane, everyday roles that the discrimination imposed by DOMA is deeply felt, but it nowhere more wounding than in their very homes," said Bridge. Most of the Justices on the Court seemed to recognize the inequity faced by same-sex couples and even suggested that "the Legislature may want to re-examine the impact of marriage laws on all citizens of this state," Madsen wrote. Alexander said that there is nothing in the lead opinion "which should be read as casting doubt on the right of the Legislature or the people to broaden the marriage act or provide other forms of civil union if that is their will." However, Justice James Johnson said that the Legislature should insist "upon compelling evidence before making sweeping alteration in marriage." "We are encouraged that at least seven of the justices on the Washington Supreme Court recognized that Lesbian and Gay families - couples and their children - suffer serious discrimination and serious damages because they do not today have the opportunity to be married," said Roger Leishman, an ACLU cooperating attorney. Unfortunately, the Court did not choose - at this point - to use its role to step in and correct that problem. Hopefully, moving forward, we will find through this and other venues the opportunity to seek and gain equality." Beth Reis and her partner of 29 years, Barbara Steele, spoke on Wednesday about their disappointment with the Madsen decision, which concluded that DOMA doesn't violate the Equal Rights Amendment in the state constitution because "[n]either a man nor a woman may marry a person of the same-sex." The couple has four children, 11 grandchildren and two great-grandsons. "The Court has ruled that we aren't being discriminated against because we could choose to break up our home and each marry someone of a different gender," said Reis. "The Court offers us nothing when it offers the right to leave one another and marry someone we don't love. "Courts have said you can get married if you owe your children entire childhoods of back owed child support. Courts have said you can get married while in prison for murder. Yet, this Court says I cannot marry this woman I have loved nearly my entire adult life; whose children I nursed when sick and cheered for at concerts. This Court says I don't have a fundamental right to protect her in our old age. We are reeling today." Eight couples, represented by Lambda Legal and the Northwest Women's Law Center had sued King County for refusing to issue them marriage licenses in March 2004. A similar lawsuit was filed against the state by the ACLU on behalf of 11 plaintiff couples. Wednesday's decision overturns the favorable ruling by judges in King and Thurston Counties. King County Executive Ron Sims, who had welcomed the lawsuit as a way to challenge our states DOMA, spoke of his disappointment at a press conference on Wednesday in front of the King County Administration Building in downtown Seattle. "I am proud to have been a defendant in this case. I was hoping and praying that I would lose, so that in this state...these extraordinary people who love each other and wish to stand before this society as equals; that their right to be loving couples would have been achieved," he said. "We need to be a society that respects everyone, embraces everyone and sees everything as integral and allows for the same footing in law. ... One day we will open these doors and people will find justice; the right to be married. "This decision will not stand the test of time. Justice won't allow it to stand the test of time." During the same press conference, State Rep. Ed Murray announced he would take the first step by introducing legislation in January that seeks to extend marriage to same-sex couples. "I don't expect it to pass for some sessions, but we need to do it," he later told the SGN. "We need to begin the discussion on marriage equality. "The struggle for justice is always a long struggle. We can't be disheartened. This is not the time to stop." State Reps. Dave Upthegrove and Joe McDermott also pledged their support for marriage equality legislation this week "I do believe marriage is going to be the long term goal. It is the only option that provides fair benefits to families and their kids," said Upthegrove. "I believe strong families are the building blocks of healthy communities and I think legislators - liberal or conservative - can agree upon that and come to see that supporting couples will bring stability to children. "Gay and Lesbian couples live in every single county in our state, not just King County. We have millions of children in this country being raised by Gay and Lesbian couples. These children deserve the same stability as the children of other couples already enjoy." Upthegrove believes that the more same-sex couple who "build personal relationships with their legislators," the quicker the landscape in Olympia will change. "In other words, come out to your legislators, because human stories are very powerful and can help make a difference," he said. The fight is personal for the three legislators, who are all openly Gay. On Wednesday, Murray and McDermott had expressed hope that one day they could marry their partners. In the meantime, the couples say their love - not laws - will give them the courage to continue the battle for equal marriage rights. "Barbara is my best friend, my most trusted confidant, and my shelter in a stormy world. She knows all my flaws and blemishes and loves me anyway," said Reis. "Today, our nation stumbled in its lurching journey toward liberty and justice for all. Today is not an end. It is one more day in the struggle for the hearts of all Washingtonians, all Americans, and our legislatures. "There will come a day in our lifetimes when our government treats us equally as every other family. Until that day, we will keep on loving one another and working to make our homes sanctuaries from discrimination." Three of the nine justices are up for re-election this fall. Alexander is the only one to have voted to retain the ban on marriage by same-sex couples. Chambers and Owens had joined the minority opinion that stated the ban is unconstitutional.