Jul 27, 2006  |  By: ELIZABETH A. PERRY  | COMMENTS     

After a 16-month delay, the Washington State Supreme Court this week upheld the state’s ban on gay marriage in a 5-4 vote, leaving intact the Defense of Marriage Act and delivering yet another court-inflicted blow to the gay marriage movement.

The same-sex marriage ban “is constitutional because the Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival,” Justice Barbara Madsen wrote in the controlling opinion.

“[The judges] showed extreme deference to the legislature,” said Lisa Stone, executive director of the Northwest Women’s Law Center and one of the lawyers who defended the 19 plaintiff couples, along with attorneys from Lambda Legal Defense Fund and the ACLU of Washington.

“They very nearly set themselves up as a rubber stamp for the legislature, and that accounts for our loss. Seven [of the justices] think discrimination is bad, and three were unwilling to engage in a strenuous inquiry about whether DOMA is constitutional.”

Kristen Waggoner, an attorney with Ellis Li & McKinstry in Seattle, helped argue the case in support of DOMA and said the ruling was one of the strongest in the nation.

“For that we are thankful, and we think future generations will be thankful as well,” she said. “The decision was a clear endorsement of marriage between a man and a woman.”

She hailed the ruling because she said children learn from having a mother and a father. Waggoner acknowledged that compassion should be shown toward today’s children, who are caught in the middle of the marriage fight.

“We should all show support and compassion to all families, including single-parent and same-sex families,” she said.

The Washington State Legislature passed the Defense of Marriage Act in 1998, restricting marriage to one man and one woman. In 2004, two lawsuits were filed to challenge the constitutionality of the act by same-sex couples seeking to marry in the state.

Superior Court judges William Downing of King County and Richard Hicks of Thurston County struck down the act as unconstitutional later that year.

The two lawsuits were consolidated and 17 more couples were added as plaintiffs in the case, which was argued before the Supreme Court under the title Andersen vs. King County in March 2005.

The ruling this week was a close one that generated pages of concurring and dissenting opinions. Because only three justices agreed with the reasoning of the court’s opinion, it is a “plurality” opinion that is accorded less weight than if a full majority had signed on. Two other justices agreed the Washington DOMA was constitutional, for a total of five voting to uphold the act, and wrote separately to explain their thinking.

“The plaintiffs in this case represent the ever-growing diversity of the openly gay community in Washington,” wrote Justice Bobbe J. Bridge, in dissent. “They are teachers, attorneys, ministers, and foster parents. In their everyday lives they are bosses, coworkers, neighbors, clients, parents, friends and volunteers.

“It is in these seemingly mundane, everyday roles that the discrimination imposed by the DOMA is deeply felt, but it is nowhere more wounding than in their very homes. Unless the concept of equal rights has meaning there, it has little meaning anywhere,” Bridge wrote.

Josh Friedes, advocacy director of Equal Rights Washington, said although his group is disappointed with the ruling, he appreciates the struggle the justices went through to render their decision.

“The court was deeply divided,” he said. “It was a 5-4 decision and there is some beautiful writing in the dissent. Even the majority recognized that gays couples are suffering without the legislative protections that marriage affords. They noted that the legislature has the power to address the issue.”

Rocky road for gay marriage

The Washington decision is only the latest example of state court rulings going against gay marriage. Evan Wolfson, executive director of Freedom to Marry, said that like the ruling earlier this month by the highest court in New York state, the Washington justices treated the right of gay couples to marry as if it were a different right than straight couples enjoy.

“If marriage is important for non-gay people and a fundamental right under the constitution, why isn’t that true for committed gay couples?” he asked.

Wolfson said the past few months have been a rocky patch for gay marriage, which he attributes partly to coincidence and partly to concerted efforts on behalf of religious right groups to “intimidate and de-legitimize the courts.”

“It is one more burden we have to carry now,” he said. “It underscores the importance of engaging in a real discussion about what is at ...