Profound issues in
Seattle lawsuit
State high court set
to rule on gay rights
Wyatt Buchanan,
SFGate.com from the Web, January 3, 2006
When San Francisco Mayor Gavin Newsom
ordered city officials to marry same-sex couples -- a defiant act two years ago
that soon was emulated in Portland, Ore., and New Paltz, N.Y. -- gay rights
supporters in Seattle demanded that their elected officials do the same.
Instead, King County Executive Ron Sims placed an unusual phone call.
"He said, 'I don't want to break the law. Will you please sue me to strike
down the law?' " said Lisa M. Stone, executive director of the Northwest Women's
Law Center. "That's not a call we get very often."
The Washington State Supreme Court is expected to rule any day in the case that
resulted and a second, related lawsuit. Not since the state Supreme Court
in Massachusetts in 2003 ordered that state's legislature to legalize same-sex
marriage has a gay marriage case drawn as much attention. Legal experts
say the rulings may serve as a gauge of the national mood and could prompt
another battle in Congress over a federal marriage amendment.
"We're watching this case very closely," said Tom McClusky, director of
government affairs for the Family Research Council, the conservative Washington,
D.C., lobbying organization leading the effort for a constitutional ban on
same-sex marriage.
"We've been pushing Congress even before the Washington state ruling just in
anticipation because we see this as a matter of utmost importance," he said.
The two Washington state cases explore two major issues being debated across the
nation: whether marriage is a right and how the government can allow
straight people to marry but not gays or lesbians.
"The cases present constitutional issues that judges haven't thought about a
great deal yet," said Matt Coles, director of the American Civil Liberties
Union's Lesbian and Gay Rights Project. "It's not just the narrow issue of
marriage but how you think about laws that discriminate against gay people under
the equal protection clause, how you think about what a fundamental right is.
"Whenever there's a situation like that," Coles added, "I think it's very hard
to be sure how (judges) are going to go."
California case
In the same-sex marriage cases moving toward California's Supreme Court, a San
Francisco trial judge ruled that denying marriage to gays and lesbians is
discriminatory because the state recognizes a fundamental right to marriage.
Court challenges to state laws banning same-sex marriage also are under way in
New York, New Jersey, Connecticut, Maryland, Florida and -- most recently --
Iowa.
Thirty-nine states in all bar same-sex marriage, 18 have enacted constitutional
bans and in some states both laws and the constitution bar same-sex marriage.
A proposal to put a ban on California's June ballot failed last week when
supporters did not gather enough signatures before the deadline; now they are
looking toward 2008.
Voters in four other states will decide on bans this year, and the issue could
crop up on ballots in some form in an additional five states.
In ruling on the constitutionality of barring same-sex marriage, the Washington
court has three main options. It could uphold the law, it could approve
the request to overturn it and order state officials to authorize the unions or
it could declare the law unconstitutional and order the state legislature to
resolve the matter.
Each of the three major recent state court rulings on the issue followed one of
those options. Indiana courts denied a request to overturn a same-sex
marriage ban. The top court in Massachusetts ordered the state's
legislature to legalize same-sex marriage. And Vermont's high court
allowed that state's legislature to enact civil unions.
"Wherever Washington goes, that's going to be tipping the balance a little bit,"
Coles said. "If it goes to marriage, that's the direction people will be
going in. If it goes to civil unions, that may be showing society is being
more cautious."
Because the Washington cases challenge only state law, they cannot be appealed
to the U.S. Supreme Court.
And that is the plan. Gay rights organizations fear that raising the
same-sex marriage issue in federal court without first building a foundation in
state court case law will be counterproductive.
'Legal building blocks'
"The lawsuits we have done that have succeeded have been carefully planned and
brought in states where we already had the legal building blocks by doing work
on other issues," said Jennifer C. Pizer, senior counsel for the Lambda Legal
Defense and Education Fund's western region and a co-counsel on one of the
Washington state cases.
Pizer, who has worked on many high-profile gay rights cases in California, said
gay rights organizations also are waiting for state legislatures to shore up the
foundation with bills like Connecticut's civil union law and the same-sex
marriage act California's legislature passed this summer, which Gov. Arnold
Schwarzenegger vetoed.
One reason the Washington cases are getting so much attention is that, unlike
Massachusetts, Washington allows nonresidents to obtain marriage licenses.
If Washington's law changed, a same-sex couple from any state could travel
there, be legally married and return home and demand recognition for their
marriage. And that would lead almost automatically to a challenge of the
1996 federal law that allows states to ignore same-sex marriages from other
states or countries and that defines marriage as between a man and a woman.
Pizer noted that although same-sex couples already are marrying in Canada and
other countries, no rash of federal challenges has resulted.
"There is widespread and accurate recognition that that is not a wise thing to
do at this time," Pizer said.
Andrew Koppelman, a Northwestern University professor of law and political
science who studies discrimination against gays and lesbians, said any ruling
against state bans on gay marriage probably will reverberate nationally,
however.
"I would expect a powerful reaction against the decision," Koppelman said.
McClusky of the Family Research Council said a ruling in favor of same-sex
unions "would be part of a wake-up call."
"If the Washington state ruling comes down allowing it, we'll call on Congress
for another vote on the amendment," McClusky said.
E-mail Wyatt Buchanan at
wbuchanan@sfchronicle.com.
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