The only protesters, a handful of middle-aged religious leaders opposed to same-sex marriage, sat quietly around the courtroom. The eight gay couples, many of them with their children, were there too. Attorneys on both sides stuck to the legal basics: Plaintiffs' attorneys argued a dry legal case, sidestepping the emotional love stories and legal struggles that they'd laid out in earlier briefs. Defense attorneys, meanwhile, stuck with their underlying arguments: that marriage is not a fundamental right, and that same-sex households are not ideal for children.
The plaintiffs' three-pronged case for same-sex marriage, laid out by attorney Bradley Bagshaw of the firm Helsell Fetterman, was straightforward. First, Bagshaw argued, all couples have a fundamental right to marry.
Second, Bagshaw handily knocked down the two procreation-based arguments against same-sex marriage, heading off the claim the defense had carefully laid out in their briefs: Marriage is meant for procreation, and children should be raised by a mother and father. The procreation argument, Bagshaw said, "doesn't really reflect reality." After all, heterosexual couples aren't required to have children if they marry. And children, he pointed out, are already being raised by same-sex couples--without the protections they would have if their parents could marry. Bagshaw also argued that the ban on same-sex marriages violates Washington's constitution.
After listening to the case for same-sex marriage for an hour, Judge Downing turned his attention to the defense, which argued that marriage is not a fundamental right. While interracial marriage has been protected by the courts, county attorney Darren Carnell said, those relationships are between a man and a woman--couples with the ability to bear children together. The law shores up the "societal ideal" of heterosexual families. Attorney Steve O'Ban, representing the religious and political "interveners," drummed the procreation argument--an issue that seemed dead once Bagshaw had finished with it--giving six reasons why a mother and father are best for children, including the idea that it helps children "learn better to live in a world comprised of males and females."
Judge Downing directed pointed questions at both sides, including a jab at a defense attorney: If a man and a woman both wanted to marry the male defense attorney, Downing asked with a smile, "and you were receptive to both, but the law stepped in and said he can't, and she can," isn't that gender bias?
Given questions like that--and the recent judicial victories for gay rights, from Texas to Massachusetts--both sides seemed to suspect Downing would, at the very least, grant the benefits of marriage to the couples. Downing will rule by August 6.
