- The Washington Times - Thursday, July 27, 2006

The Washington Supreme Court yesterday narrowly upheld a state law banning same-sex “marriage,” saying both the Legislature and the people have the authority to withhold from or grant marital rights to homosexual couples.

Justice Barbara A. Madsen, writing for Chief Justice Gerry L. Alexander and Charles W. Johnson in the 5-4 decision, said, “The solid body of constitutional law disfavors the conclusion that there is a right to marry a person of the same sex.

“Same-sex marriage may be the law at a future time,” she wrote, “but it will be because the people declare it to be, not because five members of this court have dictated it.”

Yesterday’s decision, which comes three weeks after New York’s highest court ruled against same-sex “marriage,” declared constitutional a 1998 law passed by Washington’s legislature that defines marriage as the union of one man and one woman.

The ruling against 19 same-sex couples seeking the right to “marry” is the seventh court decision this month — the fourth in a liberal “blue” state — to go in favor of traditional-marriage supporters. Massachusetts is the only state to allow same-sex “marriage.”

“We’ve been holding our breath waiting for this one, and now we can celebrate another win for marriage, democracy and judicial restraint,” said Jan LaRue, chief counsel for Concerned Women for America, which filed a pro-marriage brief in Andersen v. King County.

The Washington high court “recognized that the proper role of the judiciary is to apply the law, not create the law,” said Seattle attorney Steve O’Ban, who represented clergy and lawmakers in the lawsuit.

Homosexual rights supporters said the decision would not stop their efforts.

“We are disappointed but not discouraged,” said attorney Jennifer C. Pizer of Lambda Legal, which represented the plaintiffs along with the Northwest Women’s Law Center. Historically, in discrimination cases “of this magnitude,” she said, “the opinions of the dissenting justices later became the law of the land.”

The Washington decision is “a terrible blow,” but it “will not slow or deter efforts to achieve the promise of full equality in California,” said Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco.

California has its own same-sex “marriage” lawsuit under way, as do Connecticut, Iowa, Maryland, New Jersey and Oklahoma. The next same-sex “marriage” decision is likely to come from the New Jersey Supreme Court, which heard arguments on its case this year.

Several justices in the majority invited state lawmakers to review state marriage laws.

“[T]here is nothing in the opinion” that casts doubt on 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,” Washington Chief Justice Alexander said in a separate concurring opinion.

The four dissenting justices said the majority opinions “condone blatant discrimination” against homosexuals because the 1998 Defense of Marriage Act (DOMA) “was motivated solely by animus toward homosexuals.”

“I would hold that there is no rational basis for denying same-sex couples the right to marry,” wrote Justice Mary E. Fairhurst, who was joined by Justices Tom Chambers, Susan Owens and Bobbe J. Bridge.

The Washington DOMA, passed by a bipartisan supermajority of lawmakers over Gov. Gary Locke’s veto, defines marriage as the union of one man and one woman.

Washington Justices James M. Johnson and Richard B. Sanders, in a concurring decision, said the homosexual plaintiffs had argued that “raw judicial power” could “redefine public institutions such as marriage.”

“This court does not possess that power — no court does,” they wrote. “Separation of powers is a fundamental constitutional principle … Our oath requires us to uphold the constitution and laws, not rewrite them.”

Earlier this month, courts in six states —Connecticut, Georgia, Nebraska, Massachusetts, New York and Tennessee — issued rulings upholding the validity of traditional marriage or amendments that support such unions.

Three of the Washington court’s members — Justices Alexander, Chambers and Owens — are up for re-election in November. Earlier this month, Justice Owens dismissed talk that the court would “hold” its Andersen ruling until after the elections.

“We have never held cases. I resent when people say that,” she told an Associated Press reporter.

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