In a decision that cannot be overruled, Thurston County Superior Court Judge Thomas McPhee handed marriage equality advocates a significant victory this afternoon. Republican Attorney General Rob McKenna, whose office is tasked with writing ballot language for all initiatives and referenda, had inserted biased language into a ballot title for Referendum 74, a petition filed by religious activists trying to overturn the state's same-sex marriage law. In McKenna's draft, R-74 was littered with the phrase "redefine marriage," which the National Organization for Marriage has long ballyhooed as its most effective talking point. McPhee struck down that charged statement in favor of language saying the measure would "allow same-sex couples to marry."
McPhee's orger (.pdf) decrees that the ballot title—which includes a statement of subject and concise description—must now read as follows:
Statement of Subject
The legislature passed Engrossed Senate Bill 6239, concerning marriage for same sex couples, modified domestic-partnership law, and religious freedom [and voters have filed a sufficient referendum petition on this bill].
This bill would allow same-sex couples to marry, preserve domestic partnership only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.
Ballot Measure Summary
This bill allows same-sex couples to marry, applies marriage laws without regard to gender, and specifies that laws using gender-specific terms like husband and wife include same-sex spouses. After 2014, existing domestic partnership are converted to marriages, except for seniors. It preserves the right of clergy or religious organizations to refuse to perform or recognize any marriage or accommodate wedding ceremonies. The bill does not affect affect licensing of religious organizations providing adoption, foster-care, or child-placement.
That new language hews closely to the neutral language requested by marriage-equality advocates trying to uphold same-sex marriage by approving R-74. By nixing McKenna's ballot language and rejecting Protect Marriage Washington's request for even more biased rhetoric against gay partners, Judge McPhee handed marriage equality what could be a decisive victory from swing voters.
Stopping short of an outright celebration, however, Washington United for Marriage's Anne Levinson explained the ruling's importance outside the courthouse. "The attorney general had used language that was prejudicial towards opponents of marriage for same-sex couples," Levinson said. For example, she cites "the use of the phrase 'redefine' in multiple places—and the judge agreed with us by eliminating that term. That is an advocacy term used by the other side."
Credit for the successful appeal goes primarily the League of Women Voters of Washington and the PFLAG of Washington Council, which filed the case. The appeal was argued by Paul Lawrence, the Pacifica Group, Legal Voice, and the ACLU of Washington.