To Love, Honor, and Be Gay

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."