Reeling from the Recent Supreme Court Decision, the Gay Community Struggles to Answer the Question: What Next?
On September 20, 1971, Paul Barwick, a Vietnam veteran and former state patrol dispatcher, showed up at the King County auditor's office requesting a marriage license. With him was the man he wanted to wed, John Singer, a staffer at the federal Equal Employment Opportunity Commission who favored dresses rather than pants at work, and who was soon to change his name to Faygele benMiriam.
The two lived together in a gay-activist commune on Capitol Hill, and had recently heard that their state's marriage law had become gender-neutral in language. Their request for a marriage license, quite unusual at the time, landed on the desk of then-auditor Lloyd Hara (now a Port Commissioner) who promptly refused to grant the license. The couple sued, and their case, known as Singer v. Hara, became, at least until last week, the best-known gay marriage case in this state.
Singer v. Hara was tossed out by two courts (many gay activists now ruefully describe it as having been "laughed out" of two courts), and it ended, in 1974, at the state court of appeals level, with the couple broke and wary of filing yet another appeal, lest they further cement the dispiriting precedent.
More than 30 years later, a new gay-marriage case, Andersen v. King County, filed for the same reasons but this time with more realistic hopes of victory, has led to a new gay-marriage precedent in Washington. It is not, however, the precedent gay activists had hoped for—not a reversal of the legacy of Singer, and not an expansion of marriage rights to homosexuals.
The new case started at the same point—a request for a King County marriage license—but this time, gay activists and their lawyers took it all the way to the state supreme court, betting that the culture in Washington had changed so much since the 1970s that gay couples could now be seen, in the eyes of the law, as deserving legal recognition for their relationships.
There certainly were reasons to be so hopeful: In June of 2003, the U.S. Supreme Court struck down the last remaining sodomy laws in this country, declaring that homosexuals were "entitled to respect for their private lives." In November of the same year, the highest court in Massachusetts legalized gay marriage for the first time anywhere in the U.S., proclaiming that "the history of constitutional law is the story of the extension of constitutional rights and protections to people once ignored or excluded." And in Washington, a gay-civil-rights bill, which modestly sought to prevent homosexuals from being fired or denied housing simply because of their sexual preference, finally passed the state legislature in January after nearly 30 years of defeats.
In Washington's courts, it seemed, some things had changed too. There was no sense, this time around, that gay-rights activists were being laughed out of the room. In fact, both lower courts involved in Andersen ruled in favor of the 19 gay and lesbian couples who had been chosen as plaintiffs in the case, with one lower-court judge writing that "the characteristics embodied by these plaintiffs are ones that our society and the institution of marriage need more of, not less."
Then, on October 15, 2004, the case arrived in Olympia at the supreme court's Temple of Justice. It took more than a year and a half for the court to come to its 5–4 decision, issued just a few months before reelection races for three of the nine justices. In its hotly divided opinion, the state supreme court overturned the rulings of the two lower courts, declaring on July 26 that in fact, things had not changed that much in Washington since Singer. Echoing language from the 1974 decision, the court upheld a 1998 law banning gay marriage in Washington and ruled that "limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents."
It was a crushing blow to local gay activists and an appalling setback for their supporters. "This decision will not stand the test of time," bellowed King County Executive Ron Sims, standing on the morning of the ruling outside the King County Administration Building, where eight of the couples had earlier been denied licenses and, at his invitation, had sued. "One day we'll open these doors and people will find justice—the right to be married."
Sims's words were meant to be comforting, but they didn't answer the question now on the minds of the plaintiffs and most members of Washington's gay community: When will this justice come? And how?
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The idea of filing a new gay-marriage lawsuit in Washington State had been debated since 1998, when the state legislature, following a national trend, passed the "Defense of Marriage Act." Commonly known as DOMA, the act updated the state's marriage statute to include language expressly defining marriage as the union of one man and one woman. Passed only over the veto of then-Governor Gary Locke, DOMA was itself part of a national backlash sparked by a 1996 ruling from the highest court in Hawaii. That ruling could have led to state recognition for Hawaiian same-sex couples, but it was effectively overturned in 1998 when a backlash there led to that state's adoption of a constitutional ban on gay marriage.
The pattern should, by now, be familiar to anyone following the push for equal marriage rights: An unprecedented gain is achieved, only to be followed by a series of energy-sapping reversals. This cycle, which activists optimistically describe as "two steps forward, one step back," repeated after the Massachusetts decision legalizing gay marriage. That ruling, and the "activist judges" who wrote it, quickly became a wedge issue in the election season of 2004 and were handily used by Republicans trying to activate the party's Christian fundamentalist base. The tactic worked. George W. Bush, who made plain his distaste for gay marriage (despite the fact that the daughter of his vice president is a lesbian in a committed relationship), was reelected by a narrow margin and in the same election cycle, 11 states passed constitutional amendments banning gay marriage. Those bans—passed by voters from Oregon to Mississippi—foreclosed the legal option for gay couples in those states, and left gay-rights activists in the daunting position of having to someday convince voters and legislators to repeal amendments that passed by wide margins.
It was in the midst of this 2004 cycle of legal advancement and popular backlash that sentiment in Washington's gay community reached its breaking point. Gay community leaders who had earlier advised waiting to challenge DOMA now found that they, and the people they led, were out of patience. In San Francisco, mayor Gavin Newsom was issuing marriage licenses to same-sex couples in defiance of state law. In Portland, county officials were doing the same. Just north of Washington, in British Columbia, gay marriage had already been legalized.
"People said, 'This is it, let's go for it,'" recalled Lisa Stone, executive director of the Northwest Women's Law Center, which along with the American Civil Liberties Union and the national gay-rights group Lambda Legal became the legal force behind Andersen. It was a moment, Stone said, when "the will of the community changed, both in terms of desire and resolve," propelled by "a combination of a rush of optimism and a determination not to be left behind."
In retrospect, the gay community's heady optimism may have gotten ahead of the political realities—both here and in the other states in which legal challenges to gay-marriage bans were mounted in the months after the Massachusetts decision. Marriage licenses issued in San Francisco and Portland have long-since been annulled. In New York, a few weeks before the Washington State decision came down, that state's highest court used similar "well-being of children" language to reject a lawsuit seeking marriage rights for same-sex couples. This summer has also seen similar setbacks for the marriage-equality movement in Georgia, Nebraska, and Tennessee. And, more likely than not, there will be further setbacks this year (along with, perhaps, a few limited breakthroughs). High courts in California, Connecticut, Maryland, and Iowa are currently considering gay-marriage cases, and a ruling on a gay-marriage lawsuit in New Jersey is expected from that state's high court before the fall.
"This is a really hard time," said Stone. "I don't regret bringing the [Washington] case, even a little bit. We did a damn fine job. We did everything that could be done." But, she added, "I feel really, really concerned."
In its ruling, the majority on the Washington State Supreme Court said, essentially, that it viewed the state legislature's power to make laws—even bad laws—as "nearly limitless." And it added that the court's appropriate role in such instances should for the most part be one of "deference" to legislators' decisions. For those looking to the courts to continue their historic role in protecting minority rights (even when a majority of the voting population and their elected representatives don't want to do so), such a judicial posture is frightening. "It's not a good day for the three-legged stool of our government," Stone said. "One of those legs is looking a little wobbly."
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The bright side—although it is not much comfort to this state's disappointed gay couples—is that the decision here was so close. While Singer was unanimously rejected by the Washington State Court of Appeals in 1974, four out of nine justices on this state's supreme court signed on to a stinging dissent in the Andersen case that accused the anti-gay-marriage majority of condoning "blatant discrimination against Washington's gay and lesbian citizens."
Polls show that voters in this state, and around the country, are divided on gay marriage in almost exact proportion to the division of the Washington State Supreme Court, with bare majorities opposed and poll data trending in favor of gay marriage. (In a Pew Research Center poll conducted this March, only 51 percent of Americans opposed marriage for same-sex couples, down from the 65 percent opposed in 1996.) Younger Americans favor gay marriage by large margins, which buttresses a feeling among gay-marriage advocates and opponents alike that gay marriage is coming sometime in the near future. One Los Angeles Times poll found 70 percent of young respondents considered gay marriage inevitable.
However, it's clear that in Washington, that time is not yet here. "Looking back," said Jamie Pedersen, a lawyer with Lambda Legal who participated in the Washington marriage case, "we really lost this in the 2004 elections."
Washington is one of 21 states that elect their supreme court justices, and in the 2004 election cycle, with Andersen working its way through the state court system, liberal justice Faith Ireland was replaced with conservative Jim Johnson. An opera-loving former assistant attorney general who was elected with 53 percent of the vote, Johnson ended up writing a concurrence in Andersen that praised the "unique and binary biological nature of marriage" and called the Massachusetts decision a "notorious exception" to the body of case law recognizing marriage as "the union of one man and one woman."
The court's chief justice, Gerry Alexander, had been seen as a possible swing vote on the marriage question, someone who might replace the likely pro-marriage vote that was lost when Ireland departed. But facing a challenge from the right in his race for reelection this fall, Alexander joined the "deference" camp of the majority—while also noting, in a short concurrence of his own, that he did not intend his ruling to undercut "the right of the legislature or the people to broaden the marriage act or provide other forms of civil union if that is their will."
Alexander's statement was widely seen as an attempt to distance himself from Johnson's more retrograde language, and as a way for him to counter claims that he was being bigoted. Although Alexander denies any political calculation in his decisions on the marriage case, his ruling and concurrence read like an attempt to have it both ways.
Meanwile, left unaddressed are the double binds that now tether Washington's gay community, courtesy of the supreme court's ruling. The first of these binds comes from the way in which the court decided that gays and lesbians are not a "suspect class"—defined in the law as a group of people suffering from a past history of discrimination, marked by an immutable characteristic, and lacking in political power. By dismissing the notion that gays and lesbians might constitute a "suspect class," the justices in the majority were able to get around a requirement to impose "strict scrutiny" on the state's "Defense of Marriage Act."
There is little argument that gays and lesbians suffer from a past history of discrimination, and in an interview with The Stranger last week, Alexander himself admitted that "the preponderance of the evidence is that [being gay is] an immutable characteristic." The method, then, for his majority's ruling that gays and lesbians aren't a "suspect class" relied on proving that gays and lesbians do, in fact, have political power. And the proof for this hinged on the fact that Washington's gay-civil-rights bill had finally passed earlier this year—after 30 years of defeats.
In other words, the court was using a small but highly symbolic victory for gays and lesbians against them in their pursuit of the larger and more meaningful victory of marriage equality. Any further advances made by this state's gays and lesbians will now be seen as eroding, more completely, their likelihood of being legally protected as a "suspect class."
The second double bind grows out of the looser "rational basis" standard of scrutiny that the justices were able to employ in the Andersen case once they dispensed with the idea that gays and lesbians are a "suspect class."
According to the majority, the state legislature was acting on a "rational basis" when it decided, in 1998, to limit marriage to one man and one woman through DOMA—even though, as gay State Representative Ed Murray recalls, "There was nothing about those debates that was rational; they were the most appalling series of hearings and floor debates I've ever listened to." The decision to enact DOMA, Murray said, "was based on ignorance, it was based on the 'fact' that we were child molesters, it was based on the 'fact' that we consumed fecal matter, it was based on the 'fact' that we were criminals, it was based on the 'fact' that we died young. There was no rational argument from the Republicans."
Indeed, Republican State Senator Stephen Johnson, who is currently running for a spot on the court against liberal justice Susan Owens, was unable, in a recent candidate interview with The Stranger, to articulate a rational policy reason for his 1998 vote in favor of DOMA. The closest he came was a recollection that he had been voting the will of his district—which would be an example of pandering for the purposes of political survival, not an example of voting based on a defined policy rationale. Alexander, for his part, was unable to explain to The Stranger exactly what rational basis he believed state legislators had been acting upon when they voted to ban gay marriage in this state. "I'm feeling pretty uncomfortable," was all he could offer when pressed on this point.
With its "deference," then, the majority in the state supreme court has created a situation in which the legislature is free to enact laws that (as even the majority admits in its ruling) are harmful to gay and lesbian families and their children.
Or, put another way, having slipped through a "rational basis" loophole in order to free itself from its obligation to protect minorities from the tyranny of the majority, and having thus abrogated its responsibility to act as a check on the legislative branch on matters of minority rights, the high court now expects a discriminated-against minority group to use the legislative process to achieve equality. It's a process with little likelihood of near-term success, as the court's narrow majority likely knows.
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On Sunday, July 30, in a park on Capitol Hill named after Cal Anderson, the state's first openly gay legislator, about 100 gay community activists and political leaders gathered on the grass to talk about next steps. The sky was gray and the mood was somber, punctuated by a few determined cheers to keep fighting. But as a light rain started to fall and the group began to disperse, the question remained: How?
With Governor Christine Gregoire now sounding as if she supports the idea of civil unions, the notion of pushing for something short of marriage equality is beginning to have a certain allure to some gay-rights activists. Murray, for his part, says he will introduce a bill for full marriage equality next session (assuming he wins his race for state senate), but says in the same breath that this bill has no chance of passing—and adds that neither does any proposed civil-unions legislation.
Elizabeth Reis, a researcher with the University of Washington was, with her partner of more than 30 years, Barbara Steele, one of the plaintiffs. Reis wondered out loud whether the gay community should still hold out for marriage and nothing less, given that, as Murray said, marriage will be a long time coming and many gay couples need the benefits—hospital visitation rights, inheritance rights, shared health-care coverage—that could come from civil unions.
Reis noted that older couples, who feel impatient, and poorer couples, who can't afford to "buy their rights" through expensive legal contracts between long-term partners, are likely to be the most attracted to civil unions. In other words, the divide in the gay community is going to break along age and class lines going forward.
Pedersen, the Lambda lawyer and a current candidate for the state house seat being vacated by Murray, told the crowd to keep their eye on marriage and, like a lot of local gay leaders these days, raised the contrasting lessons of Vermont and California.
In Vermont, which created civil unions in 2000, momentum for full marriage equality has stalled. In California, by contrast, activists took an incremental approach, first getting legislators to create a limited package of benefits for "domestic partners," then adding more benefits each year until finally the state legislature saw no real difference between heterosexual marriage and gay domestic partnership. As a result, in 2005, the California legislature decided to broaden the state's marriage law to include gay couples. (Governor Arnold Schwarzenegger vetoed the bill and the California Supreme Court is now considering a lawsuit seeking same-sex marriage rights.)
Murray, covering all the bases, seemed to endorse this approach as well, promising to introduce 400 bills next session—one to address each of the rights that same-sex couples in this state are denied by not being allowed to marry.
"We're going to paper the place with bills," Murray said at the rally. "Brick by brick, let's build the institution of marriage for gays and lesbians in the Washington State Legislature."email@example.com