Updated Aug. 11
OLYMPIA, Wash. (BP)–Washington’s high court is the second court in July to block efforts by homosexual activists to force recognition of “same-sex marriage.” In a 5-4 ruling July 26, the court upheld the state’s Defense of Marriage Act (DOMA), overturning two lower court rulings that declared the legislation unconstitutional.
Consideration of the case began when 19 homosexual couples filed two cases to have the state’s DOMA overturned. Lower court rulings sided with the plaintiffs, but the supreme court’s ruling explicitly states that the court has not been given the role of deciding who may be married in the state. That role belongs to the state’s legislators, the ruling stated.
Legislators in the state’s government, the court’s majority opinion said, are “entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes.”
Justice Barbara Madsen wrote in the court’s opinion that, “In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government.”
Justice Bobbe Bridge, siding with the homosexual couples suing the state, wrote in his dissent that the high court would be maligned someday for not having overturned the state’s traditional marriage laws. Madsen, however, noted that should such laws be passed in the state, “it will be because the people declare it to be, not because five members of this court have dictated it.”
Richard Land, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, said the decision was surprising, given the court’s reputation as “one of the most liberal” in the country.
“Nevertheless, a 5-4 win is better than a 5-4 loss,” Land said, “and I can’t help but suspect that the decision by the Washington court reveals that even judges can read election returns and see which way the wind is blowing across the country. And that wind of public opinion is blowing against same-sex unions.”
The high court in New York on July 6 upheld that state’s marriage laws in a 4-2 ruling, citing reasons similar to those in the Washington case. The New York case involved 44 lawsuits from homosexual activists represented by the American Civil Liberties Union and Lambda Legal, a homosexual rights advocacy group.
“We hold that the New York Constitution does not compel recognition of marriages between members of the same sex,” Associate Judge Robert S. Smith wrote. “Whether such marriages should be recognized is a question to be addressed by the legislature.”
Homosexual activists had hoped that both New York and Washington would be the second and third dominoes to fall after their 2003 victory in Massachusetts, when the high court there ruled that the state could not prohibit “gay marriage.” That decision touched off a flurry of lawsuits in other states, including New York, Washington and New Jersey. A decision regarding “same-sex marriage” could come in New Jersey within the next few weeks.
Glen Lavy, general counsel for the Alliance Defense Fund, a conservative legal group, praised the Washington court for refusing to reduce marriage to “nothing more than a benefits system for loving couples.”
“This is a great day for the democratic process,” Lavy said in a statement. “This is a great day for Washington and a great day for the democratic process. Today’s victory shows that this court has refused to engage in judicial activism. The legislature passed a completely constitutional law when it enacted the state’s DOMA on behalf of the people of Washington, and the court recognized that.”
Steve O’Ban, an ADF-allied attorney who helped defend the Washington DOMA, said the court had followed the law. “They’ve recognized that the proper role of the judiciary is to apply the law, not create the law.”
Matt Daniels of the Alliance for Marriage, meanwhile, voiced a caution: “While we applaud today’s court decision in Washington, radical activists will remain undeterred in their attacks on marriage in state and federal courts.
“It is important to remember that the battle to protect marriage is a marathon not a spring,” Daniels said, underscoring the importance of a constitutional marriage amendment as “clearly the only hope for the American people to determine the future of marriage under our laws.”
“Most Americans believe that gays and lesbians have a right to live as they choose,” Daniels added. “But they don’t believe they have a right to redefine marriage for our entire society. Americans want our laws to send a positive message to children about marriage, family and their future.”
Representatives of Lambda Legal said their fight indeed is not over. Jennifer Pizer, senior counsel with the group and the lead attorney in the case, said in a statement the group is “disappointed but not discouraged.” She also likened the group’s efforts to legalize “same-sex marriage” to “a civil rights movement.”
“In the struggle between fairness and discrimination, fairness has won consistently in America. History has shown that in cases of this magnitude the opinions of dissenting judges later become the law of the land,” Pizer said.
Pizer noted that the latest U.S. Census revealed more than 16,000 same-sex couples in Washington who “reside in every county of the state, work in every sector of the state’s economy and represent the full racial and ethnic diversity of Washington.” If that figure is accurate, homosexual couples constitute less than one-half of 1 percent of Washington’s 6.2 million residents.
But for the court to change its ruling, there will have to be more justices with opinions favorable to the homosexual rights lobby. Three Supreme Court seats in Washington are in play in this fall’s general election, including that of Chief Justice Gerry Alexander. Alexander agreed with Justices Madsen, James Johnson, Richard Sanders and Charles Johnson in the majority ruling upholding the constitutionality of the state’s DOMA.
Justice Susan Owens, who dissented, also is up for re-election, as is dissenting Justice Tom Chambers. Earlier this month, Owens responded tersely when asked if the court was withholding its ruling on “same-sex marriage” until after the elections because of the issue’s sensitivity.
“We have never held cases. I resent when people say that,” Owens told the Associated Press. Owens is being challenged by state Sen. Steve Johnson, R.-Kent, a lawyer with more than 30 years experience in the courtroom and government.
Elections may or may not alter the makeup of the Washington high court, but Land said the close ruling illustrates further the needs to protect marriage at the federal level. The decision means that “we were one state supreme court vote away from having legalized same-sex marriages in Washington state,” Land said, “as well as having people flying in from all over the country to get married in Washington and returning to their state of residence demanding recognition of their Washington marriage license.”
“That is a circumstance we haven’t faced up to this point because of a 1913 Massachusetts law that forbids people from other states from coming to Massachusetts for the purpose of going back to their home states as a married couple. That fact that we were one vote away from being confronted with this situation underscores the need for a federal marriage protection amendment, which would currently protect us from such a catastrophic circumstance,” Land said.
President Bush has repeatedly called for a constitutional amendment protecting traditional marriage, but senators rejected such an amendment June 7 in a 49-48 vote, despite pleas for conservatives activists and religious leaders across the country. Senate Majority leader Bill Frist, R.-Tenn., said after that vote that the fight for an amendment should continue to ensure the “will of the people rather than judicial activism.”
“For thousands of years, marriage — the union between a man and a woman — has been recognized as an essential cornerstone of society,” Frist said.