by George Howland Jr.

The United States' first great civil rights struggle of the 21st century has arrived in Washington state. On Tuesday, the Washington State Supreme Court heard oral arguments about legalizing gay marriage. In 1996, in the Defense of Marriage Act, President Bill Clinton and Congress codified discrimination against people based on whom they love. Since then, 38 states have passed their own versions of DOMA, including Washington in 1998. (The state Legislature had to override former Gov. Gary Locke's veto in order to do so.)

In November 2004, President George W. Bush and his Republican allies skillfully exploited deeply held prejudices against same-sex couples by helping to pass constitutional amendments outlawing the freedom to marry in 11 states, including Oregon. Some say that more than any other issue, his opposition to gay marriage won him reelection, as the resulting turnout by social conservatives helped assure Bush of a narrow win in the key swing state of Ohio.

But also in 2004, two superior court judges, King County's William Downing and Thurston County's Richard Hicks, found Washington's DOMA law unconstitutional. Those cases, Andersen et al. v. King County and Castle v. the State of Washington, have been combined into one as the state tries to defend its law before the state Supreme Court. The plaintiffs -- 19 gay and lesbian couples -- are asking the nine justices of the Washington State Supreme Court to affirm the lower courts' decisions.

That's a lot of power to invest in nine of our fellow citizens. When you further consider that we elect these justices, and yet most of us can't name a single one, the situation becomes simultaneously ludicrous and frightening.

Embodying Justice

The Washington State Supreme Court is housed in the Temple of Justice, right across from the capitol building in Olympia. The state's highest court is asked to consider around 1,000 cases a year; it usually accepts around 135 of them. Each year, in three three-month sessions, the court hears oral arguments in the cases and reads thousands of pages of legal argument contained in briefs.

The combination of the Temple's grand Roman architecture and its setting on a hill overlooking Puget Sound and the Olympic Mountains is stunning. Everything about the court is designed to present its nine elected officials as embodying justice itself. The vastness of the temple with its huge marble Doric columns, soaring ceilings and elaborate wooden carved wainscotings makes people seem small, almost inconsequential. The court follows strict rituals: The justices enter the courtroom in order of seniority to the sound of a gavel being struck loudly over and over; They sit in the same proscribed places during each oral argument; and they wear simple black robes that erase any distinctions of dress.

Yet once the justices begin firing questions at the appearing attorneys, their individuality asserts itself, not only in the style and manner of questioning but also in the substance of the issues raised. The relationship between the state's constitution and its laws, which are fixed and written down, and the individuals who must interpret them creates a dynamic tension that makes the law a living, changing thing.

The one thing that court watchers, law professors, lawyers who argue before the court, and even sitting Supreme Court justices will tell you about this particular Supreme Court is that it is unpredictable -- not just about gay marriage, but about lots of things.

Each case that comes before the court is assigned to one justice randomly through a drawing. The identity of that "assignment judge" is kept strictly secret. After all the justices have read the legal briefs presented by both sides and listened to an hour or so of oral argument, the justices meet in their chambers, the junior justice (currently Jim Johnson) closes the door and the assignment justice lays out his or her argument for how the case should be decided. If the assignment justice can secure the votes of a majority, then he or she will write the opinion. If another member can attract five votes to his or her point of view, that justice ends up writing the decision. There is no time limit on debate among the justices, nor do they have to deliver their decisions according to any set schedule.

The random nature of the case assignment makes for an unpredictable court, argues noted criminal appellate attorney Tim Ford, who clerked for the state Supreme Court after law school. "No one is getting consistent assignments in areas and developing jurisprudence," he says. "It's a disincentive to both the boldness and the coherence."

Are Children Harmed?

In their attack on the state's DOMA law, the plaintiffs have a three-pronged strategy -- that the state has no rationale for the law and that the statute violates the state Constitution in two ways.

Does the state have a good reason for outlawing same-sex marriage? Defenders of any law facing a constitutional challenge must be able to argue effectively that the statute in question can pass the so-called "rational review" test. The state and its allies rely on the need to protect children to justify the gay marriage ban. As attorney Glenn Lavy of the Alliance Defense Fund, a conservative Christian legal foundation, says, "The social science evidence is overwhelming that kids need a mom and a dad."

The problem for the state is that there are thousands of kids in Washington who already have two moms or two dads. Since the state allows gays and lesbians to be parents, it doesn't help the children to stop their parents from getting married, argues Lambda Legal's Senior Counsel Jenny Pfizer, a gay rights' group representing some of the plaintiffs. "Thousands of children have the parents they have," she says. Prohibiting same-sex marriage, she adds, simply insures those children have less legal stability. "It's harming children in the name of protecting them," she says.

This case, however, goes far beyond the rational review test and digs into deep issues of state constitutional law.

Washington's Constitution gives greater liberty to state residents than the U.S. Constitution. Article I, section 7, of the state document reads: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The Washington Constitution is widely acknowledged as protecting against searches and seizures that the U.S. Constitution does not proscribe.

The gay marriage case, however, will attempt to extend freedom based on the state constitution in a way never before done. Article I, Section 12, of the state constitution is called the Privileges and Immunities clause, and it says, "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."

Attorneys for the gay and lesbian plaintiffs argue that their clients cannot be denied marriage because that would violate the Privileges and Immunities clause. "The Washington Constitution is more protective than the federal constitution of the right to be equal under the law," explains Lambda Legal's Pfizer. "Our clients want the same right that heterosexuals have. It's not a different right, it's the same right."

Senior Assistant Attorney General William Collins says the Privileges and Immunities clause provides no more protection than the U.S. Constitution's Equal Protection clause, and there is no federal court ruling that grants gays and lesbians the right to marry. "For over 100 years, the [state] Supreme Court has interpreted the Privileges or Immunities clause to be the same as the federal equal protection clause."

Both Collins and Pfizer agree that in 2004, the state Supreme Court did extend the rights of Washingtonians under the Privileges and Immunities clause in a case regarding annexations by municipalities. Essentially Pfizer says that earlier ruling opened the door and her clients should walk through it, while Collins says the court just opened the door for the specific set of circumstances in the annexation case.

The Human Dimension

While the sitting justices never comment on cases before them, several of them recognize that, in general, the independent interpretation of the state constitution continues to be a very lively subject. If the justices do not find that the Privileges and Immunities clause overturns the prohibition against gay marriage, Lambda's Pfizer hopes that the state's most famous constitutional amendment will persuade them: the Equal Rights amendment outlawing discrimination based on gender. "A rule that restricts by sex is not justifiable," says Pfizer.

Lawyers representing conservative Christian intervenors in the case point out that the Washington courts have already rejected this argument: In 1974, the Washington Court of Appeals ruled in Singer v. Hara that a ban on gay marriage did not violate the state's Equal Rights amendment because it applied equally to both sexes.

The same-sex marriage case will be the first time, however, that a Washington court with four female justices considers the application of the ERA to same-sex marriage. Feminism runs deep among these women: Justice Bridge used to lobby on behalf of the Northwest Women's Law Center -- one of the groups arguing on behalf of gay marriage; Justice Barbara Madsen was inspired to run for the high court by the shoddy treatment that Anita Hill received from the U.S. Senate Judiciary Committee when she testified that U.S. Supreme Court Justice nominee Clarence Thomas (later confirmed) had sexually harassed her on the job; Justice Mary Fairhurst was president of the Washington State Bar Association, an organization whose bylaws now forbid discrimination on the basis not only of gender but also of sexual orientation; and Justice Susan Owens says she never dreamed the state Supreme Court would have more than one woman, let alone four (in 2003-04, the court had five female justices).

How will their personal experience as feminists impact their understanding of the legal issues in the case? After all, one of the foundations for the contemporary gay rights movement, including the right to marry, is the movement for women's liberation.

Justice Owens says she can't allow any of her personal opinions about feminism or anything else to affect her legal judgment. "You can't be an advocate when you're a judge. How do you put your opinions aside? Your legal training, your judicial training. I've been a judge for a long time. I've learned how to think like a judge."

All the judges believe that they do their best to follow the rules of the law, properly interpret the state Constitution and pay attention to previous decisions by former state Supreme Courts without regard to their personal views on matters. It is the one thing they all wish the public would understand better about their job (and that the media would explain better when reporting on controversial cases).

Yet people on both sides of the gay marriage debate believe that personal beliefs may influence the decision in the case more than the justices are willing to admit.

Seattle University Law Professor Julie Shapiro, a same-sex marriage supporter, says, "The individual judge's visceral reaction to the justice of the claim will determine which way they vote, but how they write the opinion depends on lots of things. We are all human. We are not purely rational."

Washington Evangelicals for Responsible Government's Pastor Joseph Fuiten, whose group has intervened in the case defending DOMA, says, "We have these cowboy judges remaking the West in their own image." Fuiten believes there could not possibly be any legal basis for gay marriage; therefore, if the justices find the law banning it unconstitutional, they will just be making it up. "It will be their opinion imposed on the state of Washington," he says.

The justices refute this view of their decision-making process with a couple of recent high-profile cases: the up-skirt photography issue and the "snoopy-mom" case. In the former, the justices found that the Legislature's law against voyeurism did not ban men from secretly snapping photos up women's skirts in public places. Chief Justice Alexander says, "What they did was reprehensible, but it was not covered by this statute." The court unanimously overturned the men's convictions, and subsequently the Legislature rewrote the law to outlaw the practice.

In the snoopy mom case, a woman listened in on her teenager's conversation with her boyfriend, in which the young man provided clues to his involvement in a robbery. The mother later testified against the young man and he was convicted. The high court again unanimously overturned the conviction because the mother had violated the daughter's privacy rights by eavesdropping. Says Alexander, "The snoopy mom case was not close legally, but it's tough to explain to your barber." He says one night after the decision he was surfing cable channels and came upon Fox's Bill O'Reilly, who was calling the justices "pinheads" for their decision. "I'm a big boy, I can take it," laughs Alexander.

In both of these cases, the court clearly ruled against their personal feelings and in favor of the law.

Too Close to Call?

Still, some observers say it's not so much personal feeling as it is political machinations that enter into the high court's calculus.

Probate attorney Theresa Schrempp, who filed an amicus brief on behalf of the Concerned Women of America supporting the ban on same-sex marriage, thinks politics sways the court. "Judges are like everybody else. Judges are influenced by popular opinion sometimes," she says. In this case, however, Schrempp says a lot of social conservatives like herself feel it's the popular opinion of liberal King County that will sway the court. "It doesn't make any difference what we do, King County's values are going to win," she says. "Courts are making decisions way outside the mainstream. It's aggravating."

Well-known trial attorney, Democratic political activist and gay marriage supporter Franklin Shoichet also believes politics shape judicial opinions. "Judges take guidance from the public mood. Are they going to be spooked by what happened around the country in November?"

Shoichet believes the November passage of 11 constitutional amendments prohibiting same-sex matrimony may heavily influence the outcome of the case. "It's going to come down to how much do these people on the court think they are too far out in front of the public. They may duck the issue," he says.

Asked to respond to the criticism, Justice Charles Johnson, the court's senior member, says the issue boils down to a simple question and answer: "Do we have courage? Yes. Public reaction we can never predict. We follow and apply the law the best we can."

So given all that we know about these justices and the specific case before them on gay marriage, how are they likely to rule? Most experts won't make a prediction, but there are exceptions.

Former Washington State Court of Appeals judge and noted appellate attorney Charlie Wiggins says the court will uphold DOMA. "It's going to be a hard case," he says. "How often do they strike down social statutes on constitutional grounds?"

He believes the key to the plaintiffs' argument is that the state Constitution's Privileges and Immunities clause is more expansive than the federal Equal Protection clause. His study of the Washington State Constitutional Convention shows the Privileges and Immunities clause was not discussed at all, weakening the case that the drafters meant it to grant more rights. "The discussion of the Privileges and Immunities clause in 1889 certainly didn't include gay rights," he says.

Gonzaga Law School professor Mary Pat Treuthart thinks the court will toss out the prohibition against same-sex marriage. "I'm the Catholic schoolgirl eternal optimist," admits Treuthart, but there's more to her argument than that. She believes the plaintiffs will win because the state doesn't have a strong defense: "What are the compelling justifications to prohibit same-sex marriage?"

Treuthart doesn't believe the state's arguments about protecting children are strong because the evidence doesn't show any harm to kids from same-sex parenting. She argues, moreover, that the state hasn't presented any strong evidence that there would be real harm to the institution of matrimony from allowing same-sex marriage. She says the anti-same-sex marriage people know their legal cases are weak. "The opponents of same-sex marriage are now trying to avoid the courts. They are more comfortable trying to take this to the body politic --going the [Constitutional] amendment route."

If the state Supreme Court does overturn the ban on same-sex marriage, the opponents of gay marriage will try to push a constitutional amendment, but it won't be easy for them. To amend Washington's Constitution, first you need a vote of two-thirds of both houses of the state Legislature. After that, all amendments go directly before the voters.

For anyone favoring gay marriage, it's easy to foresee a time when its prohibition will be viewed as archaic and appalling. But that is not the world we live in now, and the nine elected judges in Olympia, if they are true to their word, are not approaching the gay marriage decision that way. They will read the state Constitution, read the state law, hear the arguments and decide how state law should regard love -- in the abstract, without emotion, as though no one dear to them is affected. It sounds humanly impossible. But that is what the law expects of them.

George Howland Jr. is the political editor of Seattle Weekly, where a version of this story first ran.

Publication date: 03/10/05

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