High-court fight looms after judge backs gay marriage
About 9:30 a.m., King County Superior Court Judge William Downing's 26-page opinion ruling that same-sex couples can marry was posted, and the pair frantically scrolled on separate computer screens to find the decision.
"Mala, page 22!" Subramaniam recalled saying to her partner. The two are among the eight same-sex couples who went to court seeking the right to get married.
In a decision that will go immediately to the state Supreme Court, bypassing the court of appeals, Downing wrote: "The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process."
For now, the ruling has little practical effect. Downing did not order King County to issue marriage licenses to same-sex couples because of an earlier agreement to let the state Supreme Court have the final say.
Joseph Fuiten, 54, president of the Bothell-based Washington Evangelicals for Responsible Government, which won intervenor status in the case, called the ruling "a shameful power grab by the judiciary."
"The decisions of the people are tossed aside like so much garbage when judges legislate from the bench," said Fuiten, who vowed to get on the ballot a state constitutional amendment limiting marriage to one man and one woman.
David Skover, a constitutional-law professor at Seattle University, defended the ruling.
"Judge Downing's opinion is an extraordinarily eloquent and incisive testament to the power of the judiciary, even at the Superior Court level, to protect fundamental constitutional rights in significant ways," he said.
"The judicial branch of government sometimes needs to put itself into tension with the Legislature," he added. "Judge Downing recognizes that it is fully consistent with our sound constitutional system and our design of government that the judiciary protect minority rights against majority will when the most fundamental of our rights are impeded."
Lisa Stone, executive director of the Northwest Women's Law Center, which along with New York-based Lambda Legal represented the eight couples, cheered the judge's ruling at a news conference. "Today the fundamental principles on which this country and state were founded — equality, liberty and justice — are a reality in Washington state," Stone said.
Jennifer Pizer, senior staff attorney with Lambda Legal, hinted that she thinks the state Supreme Court will affirm gay marriage, noting that it has already decided same-sex couples cannot be denied domestic-partner benefits or inheritance rights that married heterosexual couples enjoy.
The plaintiffs, who filed the suit against King County in March, argued that the state's 1998 Defense of Marriage Act, which restricts marriage to one man and one woman, is unconstitutional.
The defendants, which included King County and the state, argued that barring same-sex marriage serves a compelling state interest by encouraging people to have children and to raise children in a healthful, nurturing environment.
Downing agreed with most of the plaintiffs' arguments and skewered the defendants' rationale.
"The laws of today recognize the reality that a substantial amount of procreation occurs outside of the marital relationship," he wrote. If same-sex marriage were legal, more children would be raised in a home by same-sex adult partners whose marriage would bring them more family stability and social acceptance, he added.
"... the goal of nurturing and providing for the emotional wellbeing of children would be rationally served by allowing same-sex couples to marry; that same goal is impaired by prohibiting same-sex marriages," he wrote.
In his decision, the judge also scrutinized the arguments often advanced for excluding same-sex partners from marriage:
• Morality: "In our pluralistic society, in which church and state are kept scrupulously separate, the moral views of the majority can never provide the sole basis for legislation."
• Tradition: "It is true that marriage has long been defined as the union of one man and one woman. It is equally true that the shape of marriage has drastically changed over the years."
• Threats to marriage: "They come from inside the institution, not outside of it. Not to be too harsh, but they are a shortage of commitment and an excess of selfishness. Before the Court stand eight couples who credibly represent that they are ready and willing to make the right kind of commitment to partner and family for the right kinds of reasons. All they ask is for the state to make them able."
Fuiten characterized Downing's decision as relying largely on a lack of evidence that children raised in homes of gay couples are worse off than children raised in homes of heterosexual couples. His group plans to argue that just because this area hasn't been studied much doesn't mean children aren't being harmed. "We're so early on this as a social phenomenon that we don't have the capacity to measure it at this point in time," said Fuiten, senior pastor at Bothell's Cedar Park Assembly of God church. "Given this lack of study, making this leap off the precipice is unwarranted."
Sen. Val Stevens, R-Arlington, the prime sponsor of the state's Defense of Marriage Act, also criticized the judge's ruling.
"Traditional marriage teaches children the proper role models in relationships. For that reason, if for no other, the state has an interest in maintaining a clear definition of marriage," Stevens said in a prepared statement. "The title of marriage is not something couples are required to have in today's world."
Liberty Counsel, an Orlando, Fla., law firm helping to fight more than 30 right-to-marry cases, also slammed Downing's opinion.
"To say that there is no legitimate state interest to protect traditional marriage as the union of one man and one woman is absolutely ridiculous," wrote Mathew Staver, Liberty Counsel's president. "Marriage as the union of one man and one woman has been part of American history since its foundation, and is at the core of every civilized society. ... If judges can't understand such a simple concept, then one wonders how they can judge objectively anything at all."
Plaintiffs Vegavahini "Vega" Subramaniam and Vaijayanthimala "Mala" Nagarajan said they plan to adopt children and worry that they could feel inferior to other children if the couple can't legally marry.
"We're already married in our eyes, in our families' eyes, in our community's eyes, and now we're just waiting for the court to recognize it legally," Subramaniam said.
Janet Helson and Betty Lundquist, also plaintiffs in the case, attended yesterday's news conference with their daughter Zora, who recently celebrated her third birthday. The Seattle residents also have an 8-year-old, Tyler. They worry about protecting their children in the event of an accident, securing inheritance rights and Social Security benefits.
"There's a lot of ways you don't think about how not being married affects children," Helson said.
Last month the couple and their children returned from a vacation to Mexico. The plane's flight attendants instructed passengers to fill out a form for U.S. Customs. She and her partner filled out one form as a family, but upon arrival, they were told they needed two. "There's still some homophobia out there," Helson said. "It would give kids an anchor to know their parents are married, too. It's emotionally and psychologically important for children to have that stability."
Plaintiffs David and Michael Serkin-Poole of Bellevue said they've spent thousands on legal fees to establish inheritance and survivor rights, financial and health-care powers of attorney and co-parenting documents for their three children.
"It doesn't cover every possibility, but it's the best we can do, " said David Serkin-Poole. He and his partner have been together for 23 years. "I call him my fiancé. We're intending to be married; it's just going to take a while," he said.
He's confident same-sex marriage will become legal in Washington.
"I had to fight back tears ... it's a thrilling moment. Not just for us, but for our family and everybody's families. I believe in equal rights and justice for everybody."
Seattle Times reporters Katherine Sather and Janet Tu contributed to this story.
Sanjay Bhatt: 206-464-3103 or sbhatt@seattletimes.com
