To Love, Honor, and Be Gay

How the state's highest court will decide whether gay marriage is legal.

At the Temple of Justice in Olympia, a lawyer faces the nine elected members of the Supreme Court of Washington.

(Ron Wurzer)

The United States' first great civil-rights struggle of the 21st century has arrived in Washington. On March 8, the state Supreme Court will hear oral arguments about the legality of gay marriage. A few brave Supreme Court justices in other states have allowed us to glimpse the freedom to love—in Hawaii, Vermont, and Massachusetts. The resulting backlash has been frightening, both for the depth of its virulence and the vastness of the contagion. Since 1996, when President Bill Clinton and the U.S. Congress started the hate train rolling with their gleeful codification of discrimination against people based on whom they love, 38 states have passed Defense of Marriage Acts (DOMA), including Washington in 1998 (the Legislature had to override former Gov. Gary Locke's veto to do so). Last November, President Bush and his Republican allies skillfully exploited deeply held prejudices against same-sex couples by passing, in 11 states including Oregon, a constitutional amendment outlawing the freedom to marry. The resulting election turnout by social conservatives helped assure Bush of victory in the key swing state of Ohio.

Since American voters are so determined to outlaw committed love, the best hope for freedom lies with the courts. Unfortunately, the legal system isn't set up to deliver justice 100 percent of the time. Just ask Dred Scott.

In 2004, two Superior Court judges, King County's William Downing and Thurston County's Richard Hicks, found Washington's Defense of Marriage Act unconstitutional. Those cases—Andersen et al. v. King County and Castle v. the State of Washington—have since been combined into one, and the state government must now defend the law before the state Supreme Court. The plaintiffs challenging DOMA are 19 gay and lesbian couples. They are asking the nine justices of the state Supreme Court to affirm the lower courts' decisions.

That's a lot of power to invest in nine of our fellow citizens. When you further consider that we elect these justices—and, yet, most of us could not name a single one—the situation becomes at once ludicrous and frightening.

The Temple of Justice: The setting and the state Supreme Court's rituals are designed to present nine elected officials stripped of individuality.

(Ron Wurzer)

The state's highest court is housed in the Temple of Justice, across from the state Capitol Building on the Capitol Campus in Olympia. Asked to consider around 1,000 cases a year, the state Supreme Court usually agrees to consider around 135. Each year, in three three-month sessions, the court hears oral arguments and reads thousands of pages of legal argument.

The combination of the temple's grand Roman architecture and its setting on a hill overlooking Puget Sound and the Olympic Mountains is stunning. The building and the court's rituals are designed to present nine elected officials stripped of individuality, instead embodying justice as one. The vastness of the temple, with its huge marble Doric columns, soaring ceilings, and carved-wood wainscoting, makes people seem small, almost inconsequential. The court follows strict ritual: The justices enter the courtroom in order of seniority, to the sound of a gavel being struck loudly over and over. They sit in the same proscribed places during each oral argument. They wear simple black robes that erase any distinctions of dress. Yet once the justices begin firing questions at the attorneys, their individuality asserts itself over and over, not only in the style and manner of questioning but in the substance of the issues raised as well. The relationship between the state constitution and laws, which are fixed and written down, and the individuals who must interpret them makes for a dynamic that gives life to law. It is a living, changing thing.

Court watchers, law professors, lawyers who argue before the court, and even sitting justices say this particular Supreme Court is unpredictable. Some argue its unpredictability is a failure attributable to the way the court organizes its work; others think it's a virtue, because it means that the court decides each case based on its own merits.

Each case that comes before the court is assigned to a justice, randomly through a drawing. The identity of that "assignment judge" is kept secret. After all the justices have read the legal briefs submitted by both sides and have listened to an hour or so of oral argument, the justices meet in their chambers. The junior justice (currently Jim Johnson) closes the door, and the assignment justice for that case lays out his or her argument for how the case should be decided. If the assignment justice can secure the votes of a majority of the court, he or she will write the opinion. If another member can attract five or more votes to his or her point of view, that justice ends up writing the decision. There is no time limit on debate among the justices, nor do they have to deliver their decisions according to any set schedule.

The random nature of the case assignment makes for an unpredictable court, contends noted criminal appellate attorney Tim Ford, who clerked for the state Supreme Court after law school. "No one is getting consistent assignments in areas and developing jurisprudence," he says. "It's a disincentive to both the boldness and the coherence."

Justice Bobbe Bridge, a legal centrist, says the court's unpredictability is a tribute to its fairness. "We approach each case with fresh eyes and an open mind," she says.

In the gay-marriage case, therefore, the fact that two Superior Court judges have already ruled DOMA unconstitutional is not supposed to matter. The justices are supposed to consider the case "de novo" (anew), explains William Collins, senior assistant attorney general. "No weight is given to the lower-court decisions," says Collins. The court will be asked to consider the arguments presented by both sides on their own merits.

The plaintiffs have a three-pronged attack on DOMA: that the state has no rational reason for the law and that the statute violates the state constitution in a couple of ways.

Does the state have a good reason for outlawing same-sex marriage? Defenders for any law facing a constitutional challenge must be able to argue effectively that the statute in question can pass the so-called "rational review" test (see "The Rationale for Love," Jan. 19). In defending DOMA, according to legal briefs already submitted to the high court, the state and its allies rely on the need to protect children as justification for the gay-marriage ban. Says attorney Glenn Lavy of the Alliance Defense Fund, a conservative Christian legal foundation: "The social-science evidence is overwhelming that kids need a mom and a dad."

The problem for the state is that there are thousands of kids in Washington who already have two moms or two dads. The state allows gays and lesbians to be parents, so it's no help to children to stop their parents from getting married, argues Jenny Pizer, senior counsel of Lambda Legal, a gay-rights group representing some of the plaintiffs. "Thousands of children have the parents they have," she says. Prohibiting same-sex marriage, she says, simply ensures that those children will have less legal stability. "It's harming children in the name of protecting them," she says.

This case, however, goes far beyond the rational-review test. It digs deep into issues of state constitutional law.

At a Valentine's Day rally in Olympia, hundreds turned out to express support for gay marriage. But the state Supreme Court is charged with ignoring public opinion.

(Ted S. Warren / Associated Press)

Washington's constitution gives greater liberty to state residents than the U.S. Constitution. There is no argument about that, although when former Supreme Court Justice Robert Utter joined the court in 1971, independent interpretation of state constitutions—seeing them as potentially affording rights not declared in the federal Constitution—was in its infancy. Says Utter, now retired and living in Olympia: "When I first went on the court, there was not a majority that understood the importance of approaching state constitutional issues in a jurisprudential way."

Utter changed that. Over the course of his 24 years of service on the court, Utter was a pioneer in the use of the state constitution to extend the rights and liberties of Washingtonians. For example, he authored a ruling that Washington law-enforcement officials cannot set up roadblocks and engage in random stops of drivers, as is routinely done in other states, because our state constitution spells out our right to privacy. Article I, Section 7 of the state constitution reads: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." On account of the roadblock decision and others like it, the Washington Constitution is now widely acknowledged to protect us against search and seizures that the U.S. Constitution does not prohibit. The gay-marriage case is an attempt to extend freedom under the state constitution in a way never done before. Article I, Section 12 is called the privileges and immunities clause and says: "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."

Attorneys for the gay and lesbian plaintiffs argue that their clients cannot be denied marriage because that would violate the privileges and immunities clause. "The Washington Constitution is more protective than the federal Constitution of the right to be equal under the law," explains Lambda Legal's Pizer. "Our clients want the same right that heterosexuals have. It's not a different right, it's the same right."

Assistant AG Collins says the privileges and immunities clause provides no more protection than the U.S. Constitution's equal protection clause, and there is no federal court ruling that grants gays and lesbians the right to marry. "For over 100 years, the [state] Supreme Court has interpreted the privileges or immunities clause to be the same as the federal equal protection clause."

Both Collins and Pizer agree that in 2004 the state Supreme Court did extend the rights of Washingtonians under the privileges and immunities clause, in a case regarding annexations by municipalities. Essentially, Pizer says, that earlier ruling opened the door, and her clients should walk through. Collins says the court merely opened the door for the specific set of circumstances in the annexation case.

While former Justice Utter is not familiar with the briefs in the gay-marriage case, he is enthusiastic about the use of the privileges and immunities clause in general. "The federal equal protection clause talks about treating people equally," Utter says. "The privileges and immunities clause talks about not giving people rights that other people don't have. For a long time, judges didn't make a distinction between the two—that was trouble. I'm not sure the court has it totally right yet, but they are dealing with the difference."

While the sitting justices never comment on cases before them, several recognize that, in general, the independent interpretation of the state constitution continues to be a very lively subject, and the privileges and immunities clause will become a focus of some debate because of their 2004 annexation decision.

Justice Richard Sanders, a passionate libertarian, says the privileges and immunities clause "is an underused clause of the constitution often confused with the federal equal protection clause." Sanders predicts that conservative groups like the Pacific Legal Foundation and the Institute for Justice will use the clause in future cases. Justice Bridge agrees: "You are going to see more privileges and immunities issues coming before us. It is different and in some sense offers more protection" than the federal Constitution.

If the justices do not find that the privileges and immunities clause overturns the prohibition against gay marriage, Lambda's Pizer hopes that the state's most famous constitutional amendment will persuade them: The Equal Rights Amendment outlaws discrimination based on gender. "A rule that restricts by sex is not justifiable," says Pizer. Lawyers representing conservative Christian intervenors in the gay-marriage case point out that the Washington courts have already rejected this argument. In 1974, the state Court of Appeals ruled in Singer v. Hara that a ban on gay marriage did not violate the state's Equal Rights Amendment because it applied equally to both sexes.

This same-sex marriage case, however, will be the first in which a Washington court with as many as four female justices considers the application of the ERA. Feminism runs deep among these women: Justice Bridge used to lobby on behalf of the Northwest Women's Law Center, one of the groups arguing on behalf of gay marriage; Justice Barbara Madsen was inspired to run for the high court by the shoddy treatment that Anita Hill received from the U.S. Senate Judiciary Committee when she testified that U.S. Supreme Court justice nominee Clarence Thomas, later confirmed, had sexually harassed her on the job; Justice Mary Fairhurst was president of the Washington State Bar Association, an organization whose bylaws now forbid discrimination on the basis of not only gender but also sexual orientation; and Justice Susan Owens never dreamed the state Supreme Court would have more than one woman, let alone four. (From 2003 to 2004, the court had five female justices.) How will their personal experience as women affect their interpretation of the legal issues? After all, one of the foundations for the contemporary gay-rights movement, including the right to marry, is the earlier women's liberation cause.

Justice Owens attaches a great deal of importance to the presence of women on the court. "The strength of our court is its diversity," she says. "It reflects the way the world really is." Justice Madsen says, "The conversation changes when you mix genders. It's the difference between a men's locker room and a cocktail party."

At the same time, Owens says she can't allow her personal opinions about feminism or anything else to affect her legal judgment. "You can't be an advocate when you're a judge. How do you put your opinions aside? Your legal training, your judicial training. I've been a judge for a long time. I've learned how to think like a judge."

All the judges believe that they do their best to follow the rules of the law, properly interpret the state constitution, and pay attention to previous decisions by former state Supreme Courts without regard to their personal views on matters. It is the one thing they all wish the public would understand better (and that the media would explain better when reporting on controversial cases).

Chief Justice Gerry Alexander says, "We try as best we can to approach a case without preconceived notions—let the facts and the law take us where we ought to go." Justices say that isn't always easy. Says Tom Chambers: "I haven't met a statute yet that I didn't want to rewrite or at least tinker with, but I don't get to do that."

Yet people on both sides of gay marriage think personal beliefs might influence the decision more than justices are willing to admit.

Seattle University law professor Julie Shapiro, a same-sex marriage supporter, says, "The individual judge's visceral reaction to the justice of the claim will determine which way they vote, but how they write the opinion depends on lots of things. We are all human. We are not purely rational." She says that justices do sometimes tear their hair and say, "I cannot help but reach a conclusion other than what my heart dictates," but that isn't the norm. "Opinions are rarely compelled because the law is so vast," Shapiro says.

Pastor Joseph Fuiten of Washington Evangelicals for Responsible Government, a group that has intervened in the case to defend DOMA, says, "We have these cowboy judges remaking the West in their own image." Fuiten believes there could not possibly be any legal basis for gay marriage; therefore, if the justices find the law unconstitutional, they will just be making it up. "It will be their opinion imposed on the state of Washington," he says.

The justices refute this view of their decision making with a couple of recent high-profile cases: the "upskirt" photography issue and the "snoopy mom" case. In the former, the justices found that the Legislature's law against voyeurism did not ban men from secretly snapping photos up women's skirts in public places. Chief Justice Alexander says, "What they did was reprehensible, but it was not covered by this statute." The court unanimously overturned the men's convictions, and subsequently the Legislature rewrote the law to outlaw the practice.

In the snoopy mom case, a woman listened in on her teenager's conversation with her boyfriend, during which the young man provided clues to his involvement in a robbery. The mother later testified against the young man, and he was convicted. The high court unanimously overturned the conviction because the mother had violated the daughter's privacy rights by eavesdropping. Says Alexander, "The snoopy mom case was not close legally, but it's tough to explain to your barber." He says that one night after the decision, he was surfing cable channels and came upon Fox News' Bill O'Reilly, who was calling the justices "pinheads" for their decision. "I'm a big boy, I can take it," laughs Alexander.

In both of these cases, in any event, the court clearly ruled against the personal feelings of the justices and in favor of the law.

Some say it's not so much personal feeling as political machinations that enter into high court calculus.

Probate attorney Theresa Schrempp, who filed an amicus brief on behalf of the Concerned Women of America supporting the ban on same-sex marriage, thinks politics sway the court. "Judges are like everybody else," Schrempp says. "Judges are influenced by popular opinion sometimes." In this case, Schrempp says, a lot of social conservatives like her think it's the popular opinion of liberal King County that will sway the court. "It doesn't make any difference what we do, King County's values are going to win," she says. "Courts are making decisions way outside the mainstream. It's aggravating."

Well-known trial attorney, Democratic political activist, and gay-marriage supporter Franklin Shoichet also believes politics shape judicial opinions. He quotes satirist Finley Peter Dunne's fictional bartender, Martin T. Dooley, on the behavior of justices: "The Supreme Court, they follow the election returns." Says Shoichet: "Judges take guide from the public mood. Are they going to be spooked by what happened around the country in November?" Shoichet thinks the November passage of 11 state constitutional amendments prohibiting same-sex matrimony might heavily influence the outcome of the case here. "It's going to come down to how much do these people on the court think they are too far out in front of the public. They may duck the issue," Shoichet says.

Asked to respond to that assessment, Justice Charles Johnson, the court's senior member, says the issue boils down to a simple question and answer: "Do we have courage? Yes. Public reaction we can never predict. We follow and apply the law the best we can."

University of Washington adjunct law professor Hugh Spitzer, who filed an amicus brief in support of gay marriage, agrees. "They are not afraid of the voters," he says. "They have rendered many unpopular decisions, and they will continue to do so."

The other thing the justices stress is that political terms like liberal and conservative, or Democrat and Republican, don't enter into deliberations or their understanding of the job. Chief Justice Alexander says, "I don't know the politics of my colleagues. There are four or five of them—I don't even have an inkling."

Court watchers like to talk about conservative and liberal courts, however. In that context, liberal courts, like the U.S. Supreme Court under former Chief Justice Earl Warren, are known for jurisprudence that extends rights and liberties beyond what is specifically mentioned in the U.S. Constitution. Conservative courts, like the current U.S. Supreme Court headed by Chief Justice William Rehnquist, more closely adhere to the actual language of the U.S. Constitution. Within that framework, the Washington Supreme Court is considered middle of the road. Says Seattle University law professor John Strait: "It's generally a pretty centrist court. No one has carved out a strong ideology except [Richard] Sanders. The decisions don't tend to be very far outside the mainstream."

Given all that we know about these justices and the gay-marriage case before them, how might they rule? Few experts will make a prediction. But former state Court of Appeals judge and noted appellate attorney Charlie Wiggins says the high court will uphold DOMA. "It's going to be a hard case," he says. "How often do they strike down social statutes on constitutional grounds?" He thinks the key to the plaintiffs' argument is that the state constitution's privileges and immunities clause is more expansive than the federal equal protection clause. His study of the Washington State Constitutional Convention shows the privileges and immunities clause was not discussed at all, weakening any contention that the drafters meant it to grant more rights. "The discussion of the privileges and immunities clause in 1889 certainly didn't include gay rights," he says.

Gonzaga Law School professor Mary Pat Treuthart thinks the court will toss out the prohibition against same-sex marriage. "I'm the Catholic schoolgirl, eternal optimist," admits Treuthart, but there's more to her argument than that. She believes the plaintiffs will win because the state doesn't have a strong defense. "What are the compelling justifications to prohibit same-sex marriage?" She doesn't think the state's arguments about protecting children are strong, because the evidence doesn't show any harm to kids from same-sex parenting. Moreover, she argues, the state hasn't presented any strong evidence that there would be real harm to the institution of matrimony by allowing same-sex marriage. She says the anti-same-sex-marriage people know their legal cases are weak. "The opponents to same-sex marriage are now trying to avoid the courts," Treuthart says. "They are more comfortable trying to take this to the body politic—going the [constitutional] amendment route."

Fortunately, it's hard to amend Washington's constitution. First, you need a vote of two-thirds of both houses of the Legislature. After that, an amendment goes before the voters. If the state Supreme Court does overturn the ban on same-sex marriage, the opponents of gay marriage will try to push a constitutional amendment, but it won't be easy.

For anyone favoring gay marriage, it's hard not to foresee a time when its prohibition is viewed as archaic and appalling—as appalling as the old laws against miscegenation seem today, part of a shameful past. But that is not the world we live in now, and nine elected judges in Olympia, if they are true to their word, are not approaching the gay-marriage decision that way, with that or any other bias. They will read the state constitution, read the state law, hear the arguments, and decide, with detachment, how state law should regard love—in the abstract, without emotion, as though no one dear to them is affected. It sounds humanly impossible. But that is what the law expects of them.

ghowland@seattleweekly.com

The Justices

Chief Justice Gerry (pronounced "Gary") Alexander

When Seattle Weekly interviewed Alexander, he had just been informed how much damage the court's unanimous decision to toss out the state inheritance tax had done to the state budget. "We knocked over $400 million today—not bad for a day's work," he quipped. Alexander's sense of humor and lively optimism shine brightly. He has been a judge since 1973, joined the state Supremes in 1995, and became chief justice in 2001. His personal and judicial skills make him a perfect fit for the job of chief justice, who must mediate the personalities and philosophies of the court. His interest in rhetoric goes back to the elementary-school playground, where he learned to avoid getting punched out at recess by employing reason. He is an enthusiastic believer that the state constitution provides greater liberty than the U.S. Constitution. Two studies in law journals of the state Supreme Court found him to be very protective of due process and the rights of criminal defendants. Since he supports a broad reading of the state constitution's liberties, gay-rights supporters hope he will favor same-sex marriage. Others believe his cultural bias—small-town, mainstream America—would incline him against it.

Bobbe Bridge

Bridge is widely respected for her legal smarts but, unfortunately, is known best among the general public for her arrest for drunken driving in 2003. (She agreed to alcoholism treatment in exchange for a deferred prosecution.) Then-Gov. Gary Locke appointed her to the high court in 1999 after she'd spent nine years on the King County Superior Court. She fires penetrating questions from the bench. On account of her background in Democratic Party and feminist circles before becoming a judge, many view her as culturally inclined to support gay marriage. She rejects the notion that any of the court's decisions flow from personal feeling. "The belief that we have a gut reaction and find a law to fit it is not true," Bridge says emphatically.

Tom Chambers

After an interview, Chambers was looking forward to a fast motorcycle ride. Twenty years ago, it would have been a dirt bike. Before being elected to the court in 2000, Chambers rose from humble beginnings in Wapato to become one of the state's most successful trial attorneys, winning high-profile cases against insurance companies on behalf of people who had been injured. His carping about isolation from his lawyer friends has led to rumors that he will not seek re-election. He told Seattle Weekly that he loves being on the court and will run again but wishes his old friends could relax around him more. He admits that his votes, unsurprisingly, have been in favor of plaintiffs in personal-injury cases and that he's a swing vote in criminal matters. "If it is a core constitutional right, I'm there to protect it, but if I see it as a hypertechnicality, then I'm not there," he says. Gay-marriage supporters are optimistic he'll support them.

Mary Fairhurst

During her successful election campaign of 2002, Fairhurst demonstrated a remarkable ability to put a lot of words together without saying much of anything. Her votes and opinions on the court have not given anyone much more of a clue as to her legal outlook since. On the bench, however, she asks insightful questions, like the rest of them. Before joining the court, Fairhurst worked for the attorney general's office for 16 years, first under Republican Ken Eikenberry and then under Democrat Christine Gregoire, rising to chief of the Revenue, Bankruptcy, and Collections Division. She was also president of the Washington State Bar. No clue where's she's going on same-sex marriage—or anything else.

Associate Chief Justice Charles Johnson

Nobody expected Charles Johnson to be elected to the court in 1991. He was an unknown sole practitioner representing working stiffs in Gig Harbor and running against the sitting chief justice, Keith Callow. Johnson did win, however, and has won re-election twice since, becoming a respected advocate for the uniqueness of the state constitution and its extensive liberties. He teaches constitutional law at Seattle University and was fiercely opposed by many of the state's prosecutors during his 2002 re-election campaign. During interviews, his patience, humor, and reverence for the law reveal themselves. Nobody can say where he'll come down on same-sex marriage.

Jim Johnson

Just elected last November, Johnson is best known in Seattle for the legal company he has kept over the years: as chief legal Indian fighter in Slade Gorton's attorney general's office, as initiative king Tim Eyman's lawyer, and for representing those anti-environment warriors, the Building Industry Association of Washington. He admits to being a libertarian but says any idea that he'll be a conservative activist on the bench is a lot of hooey. He is passionate about the rights and liberties of the state constitution—believing the courts have let some of the state's founding document, particularly the clauses on initiative, referendum, and recall, lie too fallow. He is friends with the court's other colorful libertarian, Richard Sanders, and says both share a philosophy that the interpretation of the constitution should not stray too far from what the document actually says. For this reason, he's not considered a likely supporter of same-sex marriage.

Barbara Madsen

In 1991, Seattle Municipal Court Judge Madsen watched in horror and disbelief as an all-male U.S. Senate Judiciary Committee treated Anita Hill's account of sexual harassment at the hands of then–U.S. Supreme Court nominee Clarence Thomas with little respect. Madsen resolved to run for state Supreme Court in response and joined in the Year of the Woman, getting elected in 1992. Since, she has distinguished herself as a justice who guards the rights of criminal defendants with extreme zeal and regards the claims of civil plaintiffs with lots of skepticism. It's an unusual combination that has earned her the enmity of both prosecutors and some trial attorneys. She, like many of the justices, wishes people would understand the difference between their personal points of view and their job interpreting law. Madsen gets a lot of e-mail that misses that distinction. There is no consensus about how she'll rule on gay marriage.

Susan Owens

In 2000, when Owens ran for the Supremes, she was a tribal court and district court judge from Forks. Her rural residence and folksy charm made it easy to underestimate the graduate of prestigious Duke University. She bested several better-known attorneys and judges to win a spot on the high court. Court watchers haven't really gotten a strong sense of her, although members of the criminal bar think she favors the prosecution in close cases. She says that during her first year on the bench, she was walking on a cloud. Since then, the nasty e-mails from citizens angry over controversial decisions and the unending box loads of briefs have brought her back to earth. Still, she loves the position and is dedicated to the legal process. There's a whole lot of silence when people are asked to predict where she'll come down on gay marriage.

Richard Sanders

One observer says Sanders has a "permanent schizophrenia" between his social conservatism, grounded in Catholicism, and his legal libertarianism. Sanders says they co-exist but are not in conflict, since the former orders his personal life and the latter determines his jurisprudence. Sanders is the darling of the state's defense bar and the bane of prosecutors. He is highly protective of defendant rights in criminal cases, freedom of the press, religious liberty, and property rights. He won a high-profile struggle for his own freedom of speech after briefly speaking at an antiabortion rally in 1997. Currently, he is fighting charges that he violated judicial ethics by speaking with incarcerated sex offenders. He summarizes part of his judicial philosophy by saying, "Words have fixed meanings." That's why he's thought by most to be unlikely to say that marriage can be anything other than a relationship between a man and a woman.

George Howland Jr.

 
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