No wedding bells for state's gay couples

Told by Washington's highest court they can't marry, same-sex couples pledged to continue their fight and use Wednesday's painful loss as a way to show people across the country how important they view the right to wed.


		Mike Urban / P-I
	Harriett Cody, with sign, her daughter Halley Cody, second from right, and her husband, Harvey Sadis, all of Seattle, applaud a speaker's vow to continue the fight for gay marriage rights during a community gathering at Seattle First Baptist Church in Seattle on Wednesday, after the high court upheld a ban on gay marriage.

Proponents said they'd take their efforts to the Legislature, work to build more support and even discuss accepting justices' implied invitation to seek the same legal rights and benefits that married couples already receive.

"We're going to have to do a lot of soul-searching over the right tactics, but I want to be clear: The end goal is marriage equality," said Seattle attorney Jamie Pedersen, a volunteer attorney with national gay-rights organization Lambda Legal.

It was also a day for opponents of same-sex marriage to celebrate a long-awaited victory in their own battle. Many were happily surprised that the state Supreme Court, in six opinions totaling about 200 pages, narrowly upheld the law that defines marriage as a union between one man and one woman.

"This was a God moment. I don't want anyone to think otherwise," said Ken Hutcherson, pastor at Antioch Bible Church in Redmond. "No one expected this court to rule this way."

In the splintered 5-4 decision, the court upheld Washington's 1998 Defense of Marriage Act (DOMA), ruling that lawmakers had a rational reason to pass it -- "to promote and encourage stable families."

The Legislature was entitled to believe that letting only opposite-sex couples marry would "encourage procreation and child-rearing in a 'traditional' nuclear family where children tend to thrive," Justice Barbara Madsen wrote.


		Mike Urban / P-I
	Same-sex marriage opponents attorney Kristen Waggoner, Pastor Paul Stoot Sr., middle, and the Rev. Joseph Fuiten greet before a news conference. (DAN DELONG / P-I)

"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," she wrote in the lead opinion, also signed by Chief Justice Gerry Alexander and Justice Charles Johnson.

Two justices concurred and four condemned their stance -- a position Justice Bobbe Bridge predicted future generations would look back on "with regret and even shame."

The ruling crushed the 19 couples who sued, in both King and Thurston counties, for the right to marry in a legal fight backed by Lambda Legal, Northwest Women's Law Center and the American Civil Liberties Union.

In 2004, Superior Court judges in each county declared DOMA unconstitutional, handing the couples victories on their way to the high court.

Early Wednesday morning, Beth Reis, who's been with partner Barbara Steele for 29 years, got dressed and slipped $54 into her pocket. She hoped to get a marriage license until the court's ruling ended their plans for a simple Sunday ceremony.

"I was stunned. I was so sad. I can't describe how sad I was, confused by the logic," said Reis, who works for King County's health department. "I truly believe that we are being discriminated against."

She said people who have been divorced multiple times, owe back child support or are in prison for murder can get married, but "this court says I can't marry the woman I have loved nearly my entire adult life."

Peter Ilgenfritz said he and partner Dave Shull got married in a religious ceremony 12 years ago but hoped to make it legal this weekend.

"I was very hopeful. I felt today was a good day," Ilgenfritz said. "Today, the world turned back."

State Rep. Ed Murray, D-Seattle, said he planned to introduce a marriage equality bill in the Legislature in January if he wins his election to the Senate. He cautioned that the bill won't pass during the first few sessions, but "we have to begin the discussion with our legislators."

Same-sex marriage opponents rejoiced Wednesday, saying the decision showed judicial restraint and placed the issue where it truly belonged: before the Legislature and the public, not the courts.

The ruling basically declared marriage between a man and a woman "a good thing," said Jeff Kemp, president of Families Northwest. "It's not discriminating. In fact, it's wise and compassionate."


		Dan DeLong / P-I
	With religious leaders and opponents of same-sex marriage listening, Jeff Kemp, president of Families Northwest, speaks Wednesday during a news conference at the Westin Hotel in downtown Seattle to respond to the state Supreme Court's decision to uphold the ban on same-sex marriages.

Joining Kemp at a Seattle news conference, several pastors and other conservative Christian leaders reiterated the same point: "We are not against homosexuals; we are for marriage."

Seattle Catholic Archbishop Alexander Brunett said the decision neither diminished the dignity of individuals nor encouraged discrimination.

"The essential reality of marriage as a creative union for the protection and education of children is a long-held understanding -- not only by the church but by virtually all civilized societies throughout history," he said in a statement.

More than 40 states, like Washington, have a law defining marriage as a union between a man and a woman. Nearly 20 have written that definition into their constitution.

Massachusetts remains the only state to allow same-sex couples to tie the knot.

In their ruling Wednesday morning, justices of the court's lead opinion found that people don't have a fundamental right to marry someone of the same sex.

They also concluded the state's marriage law doesn't violate Washington's equal rights amendment because it "treats both sexes the same," Madsen wrote. "Neither a man nor a woman may marry a person of the same sex."

Madsen did say, however, that "many day-to-day decisions that are routine for married couples are more complex, more agonizing and more costly for same-sex couples."

She then suggested that lawmakers could help alleviate such hardship, stating that "the Legislature may want to re-examine the impact of marriage laws on all citizens of this state."

Some same-sex marriage advocates said they will consider whether to pursue something along the lines of legalized "civil unions" that would give people the same legal rights as married couples.


		Jim Bryant / P-I
	Jerry Merritt, clerk of the court, left, consoles Jeff Kingsburg, right, and his partner, Alan Fuller of Olympia, as they pick up the Supreme Court decision at the Temple of Justice in Olympia. The couple are plaintiffs in the case in which the state ban on same-sex marriages was upheld Wednesday.

"It's time we had a discussion around the state about whether it makes sense to have an intermediate step, and that would be civil unions," said Lisa Stone, executive director of Northwest Women's Law Center. "I'm not saying we should, but we have to figure that out."

Many couples have been unwilling to fight for anything less than marriage, but some advocates acknowledged Wednesday that they might have to take smaller steps along the way.

In a concurring opinion, Justice James Johnson agreed that the state's marriage law was constitutional but more actively opposed the idea of letting same-sex couples marry. Joined by Justice Richard Sanders, he also suggested that the Legislature "insists upon compelling evidence before making a sweeping alteration in marriage."

In dissent, Bridge wrote that same-sex couples "are bosses, co-workers, 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."

Also dissenting, Justice Mary Fairhurst concluded there's no logical way that preventing same-sex couples from marrying encourages heterosexual couples to procreate or get married for the benefit of their kids.

Justice Tom Chambers wrote a third dissent; Justice Susan Owens signed the dissents of Chambers and Fairhurst.

Chief Justice Alexander wrote a short concurring opinion to state that, despite the other lengthy opinions, the question was narrow: Did the same-sex couples prove the law was unconstitutional?

The answer was no, he wrote. He also emphasized that the Legislature and the people of Washington have the right to "broaden the marriage act or provide other forms of civil union if that is their will."

The court's fractured opinion was entirely expected for such a complicated and controversial issue, said Hugh Spitzer, who teaches constitutional law at the University of Washington and filed a written argument supporting the couples.

But it also could provide muddy precedent for future cases involving the same areas of the state constitution -- the Equal Rights Amendment and the "privileges and immunities" clause.

"This case doesn't provide very much guidance to judges and lawyers in the future for how those sections of the constitution should be applied," Spitzer said.

Both sides agree the matter can't be appealed to the U.S. Supreme Court because the issues involve the state constitution, though Attorney General Rob McKenna noted the plaintiffs could bring a new lawsuit in federal court.

"Moving forward, people who are unhappy with this decision have the ability to change the law through the Legislature or through initiative," McKenna said.

By late Wednesday, hundreds of same-sex marriage proponents gathered at First Baptist Church on Capitol Hill, where some took solace in how close the ruling came to going their way. Many wanted to simply look ahead.

"Marriage is a civil right. Lesbian and gay equality is fundamental to a society where all citizens are treated equally," said ACLU attorney Roger Leishman.

"It's just a Wednesday. Tomorrow will be Thursday, and we'll move forward."

THE JUSTICES

UPHOLDING THE STATE'S MARRIAGE LAW, which prevents same-sex couples from marrying: Chief Justice Gerry Alexander and Justices Charles Johnson, Barbara Madsen, Richard Sanders and James Johnson:

Madsen wrote the lead opinion, which held that the Defense of Marriage Act doesn't violate the state constitution. Her ruling also suggested that the Legislature may want to re-examine the impact of marriage laws on all state residents. Madsen was first elected to the Supreme Court in 1992 after working as a public defender and as a special prosecutor for the Seattle City Attorney's Office. The 54-year-old Renton native is chairwoman of the court's Gender and Justice Commission. On the court, she drew prosecutors' ire several years ago for writing an opinion that threw out part of the state's felony murder law, and she wrote a ruling in 2000 that struck down an initiative that cut car-tab fees.

Alexander issued a separate concurrence, stating that the same-sex couples hadn't proved that the state law defining marriage between a man and woman was unconstitutional. Ruling otherwise, he said, would usurp the role of the Legislature. He joined the court in 1994 after serving 21 years on the bench in Thurston and Mason counties and the state Court of Appeals. The 70-year-old Olympia native has been chief justice since January 2001 and is seeking re-election this fall. Many legal observers considered him a big question mark in the same-sex marriage case.

Charles Johnson was elected in 1990 when, as a little-known Tacoma lawyer, he stunned many by unseating the court's chief justice. Johnson, 55, is co-chairman of the Washington State Minority and Justice Commission and has been supported by both Democrats and property-rights advocates. In a recent dissent, he said the state's death penalty system was flawed.

James Johnson provided a different legal rationale in separate opinion, which Sanders also signed. He is the court's newest justice, elected in 2004 and backed mainly by conservative groups and property-rights advocates. As a veteran appeals lawyer, he defended anti-tax initiatives and spent 20 years working for the state Attorney General's Office. Johnson, 60, wrote a sharp dissent in November contending that a woman should not be able to seek parental rights to a girl she helped raise with her same-sex partner.

Sanders is a frequent dissenter who is as popular with property-rights advocates as he is disliked by prosecutors. On the court since 1995, Sanders, 60, sparked controversy by giving a speech at an anti-abortion rally and for visiting the state's sexual-predator center while residents had pending appeals. Court watchers said he was tough to predict in the same-sex marriage case because he is both libertarian and Catholic.

DISSENTING: Justices Bobbe Bridge, Tom Chambers, Mary Fairhurst and Susan Owens:

Fairhurst, author of the dissenting opinion, wrote that justices in the lead opinion "condone blatant discrimination" in the name of encouraging procreation and marriages that result in children, while ignoring the fact that denying same-sex couples the right to marry won't further those interests. She is a first-term justice who was an assistant attorney general for 16 years and was president of the state Bar Association. The state Democratic Party, organized labor and environmental interests supported her 2002 campaign. Fairhurst, 48, recently wrote a ruling that a city gave the public adequate notice of a meeting by posting a notice on its Web site and one upholding Sound Transit's condemnation of a Tacoma couple's land.

Bridge issued a separate dissent, noting that the majority too easily dismisses the proper role of the judiciary to protect the constitutional rights of those who have been historically disenfranchised. She has been on the high court since 1999 after 10 years as a King County Superior Court judge. She once ran for the King County Council as a Democrat. Bridge, 61, wrote an opinion in November saying a Seattle woman could seek parental rights for a girl she helped raise with her same-sex partner.

Chambers also issued a separate dissent, disagreeing with the lead opinion's analytical approach. He is a first-term justice seeking re-election. He was president of the state Bar Association and the Washington State Trial Lawyers Association and grew up in rural Wapato. Some legal observers say the 62-year-old veteran trial lawyer often favors the little guy. Court watchers were surprised when he wrote a recent decision upholding the death penalty.

Owens was elected to the court in 2000 despite being a relatively unknown candidate, a Clallam County District Court judge who also was a tribal judge. She was raised in North Carolina and is passionate about domestic-violence issues. Writing for the majority last year, Owens, 56, ruled that a woman's decision to seek court protection from her husband, a sheriff's deputy accused of abusing her, should not have been held against her in her divorce.

-- Tracy Johnson

P-I reporters John Iwasaki and Chris McGann contributed to this report. P-I reporter Tracy Johnson can be reached at 206-467-5942 or tracyjohnson@seattlepi.com.

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