2nd Wash. state judge strikes down same-sex 'marriage' ban
Posted on Sep 8, 2004 | by Michael Foust
SEATTLE (BP)--Citing the U.S. Supreme Court's controversial Lawrence v. Texas decision, a second Washington state judge struck down that state's ban on same-sex "marriage" Sept. 7, saying it violates the Washington state constitution.
The ruling by Superior Court Judge Richard D. Hicks follows a similar ruling by another Washington state judge in early August. Both men ruled against the state's Defense of Marriage Act, which was passed by the legislature in 1998 and prevents the state from recognizing same-sex "marriage."
Prior to the pair of rulings, no American court had ever struck down a state's defense of marriage act.
"The clear intent of the Legislature to limit government approved contracts of marriage to opposite sex couples is in direct conflict with the constitutional intent to not allow a privilege to one class of the community that is not allowed to the entire community," Hicks wrote.
The case, brought by the American Civil Liberties Union on behalf of 11 homosexual couples, likely will end up before the Washington state Supreme Court -- possibly as early as this year. Washington is one of nine states involved in lawsuits seeking same-sex "marriage" legalization.
Although a setback for pro-family groups, the Washington case could be used to pressure state legislatures to pass a state constitutional amendment banning same-sex "marriage." Prior to the two rulings, some state legislatures argued that an amendment was unnecessary because current state law was adequate.
"[The ruling is] just so far out of the mainstream thinking," state Rep. Gigi Talcott, a marriage amendment supporter, told the Seattle Post-Intelligencer. "I think it's a classic case of what an activist judge can do."
Unlike some states such as California and Oregon, Washington does not have a law allowing citizens to gather petitions and place constitutional amendments on the ballot. Instead, amendments must originate in the legislature.
"This is an important victory for fairness and equality," Kathleen Taylor, executive director of the ACLU of Washington, said in a statement. "The judge ruled that government must treat same-sex couples the same as other couples and that two consenting adults who wish to enter into the commitment of marriage cannot be denied its benefits simply because they are of the same gender."
Hicks compared laws banning same-sex "marriage" to laws of yesteryear banning interracial marriage. In arguing that marriage is "a fundamental right," Hicks pointed to the 2003 Lawrence v. Texas decision that struck down anti-sodomy laws. When the Supreme Court issued that opinion, Justice Antonin Scalia, writing for the minority, warned that the opinion would pave the way for same-sex "marriage."
"Persons in a homosexual relationship may seek the same personal dignity and liberty to make personal choices as heterosexual persons do," Hicks wrote, summarizing the Lawrence decision.
But Hicks said that Washington's Defense of Marriage Act does not violate the U.S. Constitution. It does, though, he said, violate the Washington state constitution's Privileges or Immunities clause, which states: "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."
"Same-sex couples can have children through artificial insemination and same-sex couples can adopt children all with the government's approval," Hicks wrote. "Where is the protection for these children?"
Washington state pro-family groups criticized the ruling and said a state constitutional marriage amendment must be adopted.
"This is a quantum leap in social change," Joseph Fuiten, president of Washington Evangelicals for Responsible Government, said in a statement. "... Even though homosexuality is a condition in which people both enter and leave, the court has determined that they represent a class of people analogous to a race of people."
The two rulings in Washington likely will strengthen the argument for a marriage amendment to the U.S. Constitution. In recent months pro-family leaders have argued that state laws -- such as Washington's -- are inadequate to protect the traditional definition of marriage because they can be struck down in court.
For more information about the national debate over same-sex "marriage," visit http://www.bpnews.net/samesexmarriage