Wash. Court Rejects Gay Marriage

Times Staff Writer

Opponents of gay marriage racked up another legal victory Wednesday, as the highest court in Washington state ruled 5 to 4 that there was no constitutional right for people of the same sex to marry each other.

But even as the state Supreme Court upheld the Legislature's 1998 Defense of Marriage Act, three judges in the majority urged lawmakers to revisit their ban on same-sex marriage and the "clear hardship" it imposed on gay people and their children.

The ruling in liberal-leaning Washington echoed one this month in New York, and it left opponents of same-sex marriage elated and hopeful that the national movement was sputtering to an end.

"Christians all over the state have been praying for this decision, and there is a sense of joy," said Rick Kingham, senior pastor of the Overlake Christian Church in Redmond, Wash., and a leader of Allies for Marriage and Children, a citizens group. "We would truly say that God has intervened in the affairs of man."

For gay-marriage supporters, the ruling was a major setback. It overturned pro-gay-marriage decisions by two lower-court judges and leaves Massachusetts as the only state in the nation with legally sanctioned same-sex marriage.

But they seized hopefully on the narrow margin and the majority judges' call to lawmakers to revisit the issue as indications that their side would prevail.

"If the Legislature does not make changes first, I firmly believe that a future court will take up this issue again," said King County Executive Ron Sims, the chief elected official in a jurisdiction that includes Seattle and several eastern suburbs.

"And on that day," Sims said, "a wiser and more enlightened generation will overturn this ruling."

Sims and other gay-rights supporters had likened the struggle over same-sex marriage to earlier civil rights battles -- such as school segregation and bans on interracial marriage -- in which the courts stepped in to undo discriminatory laws.

But the majority of judges concluded that the matter of whether gay people should be able to marry was up to an elected legislature, or even directly up to the people via a popular referendum.

"While same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it," wrote Justice Barbara A. Madsen in one of two opinions that made for a majority in the case.

"There is evidence that times are changing," added Madsen, "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."

In an unusual split among the majority, two justices, who are generally regarded as conservative, issued what was effectively a blistering critique of Madsen's times-may-change argument.

Those two justices, James M. Johnson and Richard B. Sanders, described their opinion as "analyzing and rejecting all constitutional claims to achieve finality" in resolving the contentious issue.

"This conclusion may not be changed by mere passage of time or currents of public favor and surely not changed by courts," wrote Johnson.

Four justices dissented altogether from the majority ruling.

"Unfortunately," Justice Mary E. Fairhurst wrote, those in the majority "are willing to turn a blind eye to DOMA's discrimination because a popular majority still favors that discrimination."

The Defense of Marriage Act, or DOMA, was passed by the Legislature in 1998 over the veto of then-Gov. Gary Locke, a Democrat.

The current governor, Chris Gregoire, also a Democrat, maintained the sort of above-the-fray approach she has taken on the issue, in which she has suggested it was fundamentally religious, not legal.

"On the issue of gay marriage, Washington is a very diverse state, and there are many strongly held opinions and personal feelings on this issue," she said in a statement responding to the court's decision.

Gregoire said the state should provide the "same rights and responsibilities to all citizens." At the same time, she said, "the sacrament of marriage is between two people and their faith; it is not the business of the state."

In news conferences and interviews Wednesday, same-sex marriage opponents emphasized what they called the positive nature of the ruling.

"We are not against anyone. We are for marriage," said Jeff Kemp, president of Families Northwest, son of former Rep. Jack Kemp (R-N.Y.) and a driving force in Allies for Marriage and Children.

"What the state is saying is that there is an ideal form of family. In this ideal we have a mother and a father," Kemp said at a rally and news conference at Seattle's Westin hotel.

But in equal measure, people on the other side of the issue -- including the 19 gay and lesbian couples who were plaintiffs in the case, all seeking the right to marry -- described painful feelings of exclusion upon hearing of the justices' ruling.

"There aren't words to describe how hurt people in the gay and lesbian community are," said state Rep. Ed Murray, a Seattle Democrat who is one of four openly gay members of the state Legislature. "There's a lot of tears and a lot of anger right now."

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