All 38 plaintiffs, representing 19 gay and lesbian couples, packed into the tiny hearing room in Olympia's Temple of Justice Tuesday afternoon for oral arguments in their combined suit against King County. The suit, which was tossed up the judicial ladder to the state Supreme Court from Superior Courts in Thurston and King counties, could prove landmark if, in the course of their four-to-six-month deliberations, the justices agree with the plaintiffs that the state's 1998 Defense of Marriage Act -- which prohibits same-sex marriages -- is unconstitutional.
The air inside the hearing room was stultifying as the justices trudged out to the steady beat of the bailiff's gavel. All rose, all were seated. And what followed was an hour-and-a-half-long blitzkrieg of nearly impenetrable legal jargon, made all the more difficult by practically non-functional microphones. As both sides awaited the wise words of their legal counsel, and all 60 or so people in the room strained to make out those words, the tension became almost exhausting.
And it was only amplified by the seeming testiness of the justices (especially feisty Judge Richard Sanders), who took every opportunity to doubt, interrupt, cross-examine and interrogate attorneys on both sides of the aisle. When William Collins, an attorney for King County, which is defending the state law, tried to stress the importance of honoring previous legal rulings on the question of gay marriage (perhaps the most dominant strategy in his team's defense), Sanders turned it into a human question, asking sharply, "You reject the idea that [marriage] is a fundamental right, then?" Collins responded bluntly in the affirmative, adding that "There is no history or tradition of same-sex marriage in Washington. None at all." And, therefore, why go create one?
When King County attorney Steve O'Ban argued that the court should follow precedent, Sanders practically bristled. "Why should we follow the federal case law? This is our state constitution."
Neither did the justices pull their punches for the plaintiffs, who said they wanted "Washington [to] fulfill the promises of liberty and equality to all its citizens," and asked that the court "look forward, not just backwards."
Again, Sanders, who has a reputation for sticking to the precise letter of the law, attacked. He came just short of accusing plaintiff's counsel, Patricia Novotny, of moralistic waffling when he asked, of the 1970s Equal Rights Amendment, "You think the statute means different things at different times?"
It was the same argument Novotny's colleague, attorney Paul Lawrence, was faced with at the podium. Chief Justice Gerry Alexander asked him whether denying gays the right to marry has always been "irrational" or if it were once rational, and has only become unreasonable now that homosexuality has gained more mainstream acceptance in American culture. Lawrence brought up the examples of polygamy and bans on interracial marriage as things that were once sanctioned, but which were ruled otherwise following a change in public, cultural opinion.
If anything, though, the oral arguments themselves were anticlimactic to the buildup that preceded them. The Capitol lawn was like a circus, with thousands of conservatives showing up to stage a rally in protest of the potential overthrow of the Defense of Marriage Act. Grizzly old men in beards, families pushing strollers around and cliques of stylish young women punctuated the quasi-evangelical cries of the local pastors on stage with bursts of "Amen" and "Praise Jesus!" Local pastors whipped the masses into a nearly evangelical fervor, and Christian bands sang songs like "We Are United" and "My Country 'Tis of Thee." Red and white signs reading "Marriage: One Man, One Woman" were everywhere.
Marge Ballack, a Spokanite and one of the case's 38 plaintiffs acknowledged that "the religious right's probably a little more organized." On the steps of the Temple of Justice, things were considerably quieter. Those red and whites still dominated the frame, but here there was a rag-tag band of supporters of the plaintiff's cause. White-clad volunteers for PFLAG (Parents, Families and Friends of Lesbians and Gays) handed out big pink stickers to protesters, dogs and conservatives, starting scriptural scuffles with activists. (Quote of the Day: A weaselly man wearing a yellow Christian rally shirt like a cape around his neck, approaches a lesbian couple and asks, "I take it you've been hurt by guys -- that's why you choose not to date 'em?")
Also among the rabble was a group of 10 Gonzaga University students who made the long drive to the Capitol on Sunday to lobby state Sen. Lisa Brown and make their presence known at the hearing. Wearing hand-painted, multicolored T-shirts they made at their cabin in Chehalis, the students linked arms up the court building's front steps, creating one continuous rainbow in support of allowing gays to marry.
Before the oral arguments began, standing just a few feet away, Marge Ballack said that the reason she got involved as a plaintiff in the case was "So the kids across the aisle there, from Gonzaga, won't have to go through this. They're very brave."