OLYMPIA, WA — The campaign for gay rights trained its hopes for marriage equality on nine men and women inside the Temple of Justice yesterday.

Attorneys for 19 lesbian and gay couples, their expectations high, made their case for state-sanctioned civil marriage before the Washington Supreme Court as the state, King County and a group of intervenors argued that the traditional look of marriage should not change.

The celebrated occasion became a spectacle on the Capitol campus as thousands of demonstrators, the majority of them religious opponents of same-sex marriage, filled the air with chants and gospel music. Gay-marriage advocates also turned out, forming a human chain to give some of the plaintiff couples access to the courtroom and later applauding as they left.

David Shull, a pastor at University Congregational United Church of Christ in Seattle, and his partner, Peter Ilgenfritz, are plaintiffs in the lawsuit. He called the event "totally awesome and humbling at the same time. The possibility of gays and lesbians finally being able to marry is so right."

The few couples who were able to squeeze into the courtroom listened with rapt attention as the justices pelted questions at the attorneys — questions that offered a glimpse at the scope and complexity of the issues they are grappling with.

The legal and social impact of the high court's ruling, which could come by fall, will reach far beyond this state.

A victory by the couples would make Washington the second state, after Massachusetts, to legalize marriage for gays and lesbians and the first to give out-of-state same-sex couples that right.

DOMA being challenged

At issue is the state's Defense of Marriage Act (DOMA), passed overwhelmingly by the Washington Legislature in 1998 to restrict marriage to one man and one woman.

"This is an important case that speaks to the type of community that we are," Paul Lawrence, attorney with the American Civil Liberties Union of Washington, told the justices.

"Will we be a community that protects individual rights ... and treats all its citizens with respect, or one that sanctions discrimination and embraces prejudice? We're asking this court to adopt a vision of our community as one of fairness by striking down DOMA."

But attorney Steve O'Ban, representing the intervenors, a group of legislators and religious leaders, told the justices that no court has ruled that marriage is a fundamental right. "And we have made the determination that the optimal environment for raising a child is in a household headed by a man and a woman."

The 19 couples are part of two lawsuits — Andersen v. King County and State of Washington v. Castle — filed a year ago. In August, King County Superior Court Judge William Downing and later Thurston County Superior Court Judge Richard Hicks ruled in favor of the couples, striking down the DOMA statute as unconstitutional.

The state and county appealed in both cases, setting the stage for the consolidated case to reach the high court on a fast track.

State Sen. Val Stevens, R-Arlington, a sponsor of the original DOMA and one of the intervenors in the case, said that if the law is not upheld, "We will see the diminishing of a tradition that you and I hold dear, and that is unacceptable."

Rep. Gigi Talcott, R-Tacoma, said early yesterday that she and other DOMA supporters were optimistic that the court would uphold the law, but also were prepared to take the issue to voters in the form of a constitutional amendment. Two resolutions to make that possible have been introduced in the state Senate, although in a Democrat-controlled Legislature they may be unlikely to pass.

Those who gathered outside the Capitol yesterday to protest gay marriage numbered 5,000 to 7,000, according to police estimates. The rally drew entire families and others who waved signs such as: "One man, one woman: you do the math." A prayer corner was set up so participants could look at photos of the nine justices and pray for them as they heard the case.

Pastor Joe Fuiten, president of Washington Evangelicals for Responsible Government, told the crowd that "marriage is like Noah's Ark: Sometimes it may stink, but it's the best thing to stay afloat.

"All kids deserve a mom and a dad, and we need a policy that makes it so," he said.

The couples who sued the state and the county built their case around the premise that marriage is a fundamental right.

They argued that by denying gays that right, DOMA violates the state constitution's privileges-and-immunities clause, which requires that any privileges granted by the state to one group of citizens must be offered to all.

In defending DOMA, the state must convince the justices that the statute can pass the so-called "rational review" test, by showing that it serves a legitimate state purpose.

William Collins, the senior assistant attorney general who argued for the state, told the justices that rational basis stems from the fact that "only sexual relations between a man and a woman can create children — planned or unplanned."

Justice Tom Chambers pointed out that assisted-fertility techniques have allowed gays to have children.

Collins said, "It's not irrational for the state to encourage sexual relations to occur in the context of marriage. A vast majority of children come into the world the old-fashioned way. That's the rational basis."

The justices raised questions about defining gays as a suspect class, a legal designation that confers minoritylike status on certain groups based on characteristics such as race or gender.

They also asked attorneys from both sides about the application in this case of the state Equal Rights Amendment, passed in 1972, which says in part that "Equality of rights and responsibility under the law shall not be denied or abridged on account of sex."

Attorney Patricia Novotny said each individual has a right to be treated equally regardless of gender.

Darren Carnell, an attorney representing King County, said the state's Equal Rights Amendment does not confer the right to gay marriage.

Novotny, an attorney with the Northwest Women's Law Center, which along with Lambda Legal sued King County on the couples' behalf, noted that the court has previously identified what makes a marriage, looking at marriagelike relationships such as cohabitation and pooling resources and support.

"Never has it looked at whether there are children involved," she said.

Justice Barbara Madsen suggested that DOMA doesn't define marriage as much as it outlines the qualifications for marriage.

But Novotny said: "We're left with a scheme that favors one set of children not because of the way they were brought into the world but by the identity of the parents."

Justice Susan Owens pointed out that the plaintiffs reject calling what they seek anything other than marriage, yet "they are all civil unions," she said.

Novotny said the court faces a single question: Is DOMA constitutional or not?

Sounding a theme familiar to civil rights, Novotny argued: "Separate is not equal."

This entry was posted on Wednesday, March 09, 2005 at 2:27 PM. Want to discuss? Leave a comment below.