By Blaine Harden
Washington Post Staff Writer
Thursday, July 27, 2006; A03
SEATTLE, July 26 -- Deferring to state lawmakers and agreeing with most other U.S. courts, the highest court in Washington state on Wednesday upheld a state law that bans same-sex marriage.
The Washington Supreme Court, though, was bitterly divided in its 5 to 4 decision, producing six separate opinions in rejecting the claim of 19 gay couples that they are victims of state-sanctioned discrimination that harms their children and their financial security.
In its lead opinion, the Washington court insisted repeatedly that elected lawmakers have wide discretion to define marriage -- while judges do not.
"At the risk of sounding monotonous," the lead opinion said, "legislative bodies, not courts, hold the power to make public policy determinations." It added that where "no fundamental right is at stake, that power is nearly limitless."
The court ruled that gay couples challenging Washington's 1998 Defense of Marriage Act had failed to show that it denies them either a "fundamental right" or equal protection under the law.
"Although marriage has evolved, it has not included a history and tradition of same-sex marriage in this nation or in Washington State," the opinion said. It added that because state law prevents both sexes from entering into a same-sex marriage, it does not discriminate on the basis of sex.
The opinion dismissed a lower-court ruling, which had found a fundamental right to same-sex marriage, as "astonishing, given the lack of any authority supporting it."
Only one state, Massachusetts, allows same-sex marriage, and then only for its own residents. If the Washington court had overturned the ban, state law here would have allowed nonresident gay couples to come here and get married. Earlier this month, the high courts in New York and Georgia also ruled against same-sex marriage. At least a half-dozen other states have legal challenges about same-sex marriage pending.
Wednesday's decision here shows the continued difficulty that proponents of same-sex marriage have in their legal challenges.
The Washington court's lead opinion suggested several times that the majority of justices may disagree with the state's ban on same-sex marriage but that they had ruled narrowly on its constitutionality. The decision "is not based on an independent determination of what we believe the law should be," the opinion said.
A sharply worded dissent, written by Justice Mary E. Fairhurst and signed by three other justices, said the court was using "the excuse of deference to the legislature to perpetuate the existence of an unconstitutional and unjust law."
The majority ruling condoned "blatant discrimination against Washington's gay and lesbian citizens in the name of encouraging procreation" and raising children in homes with opposite-sex parents, Fairhurst wrote. She argued that the court ignored "the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests."
Senior political leaders in Washington state, where Democrats control most top offices, were critical of the much-anticipated ruling on a case that was heard by the state's high court more than 15 months ago.
Arguing that marriage "is not the business of the state," Gov. Christine Gregoire said she does not believe government should discriminate against any citizen. But she urged respect for the ruling "whether we agree with it or not."
At a news conference in downtown Seattle, King County Executive Ron Sims, who two years ago had encouraged gay couples to sue him to overturn the state ban on same-sex marriage, stood with dozens of disappointed plaintiffs and compared Wednesday's decision to the U.S. Supreme Court's ruling in Plessy v. Ferguson , which affirmed the principle of separate but equal in race relations.
"This is an unwise decision," said Sims, who is black and who said that gays must continue to fight for change, just as blacks did. "Sometimes it takes longer than we might like to bring about needed social change."
As for the plaintiffs, they said they were surprised and angry, and determined to press the state legislature to overturn the marriage law.
"We are reeling today," said Elizabeth Reis, a Seattle health teacher who has been together with her partner, Barbara Steele, a retired researcher in communicable diseases, for 29 years. They raised four children together and have 14 grandchildren and two great-grandchildren.
"Courts have said you can get married if you have been married six times before," Reis said. "Courts have said you can get married if you owe your children entire childhoods of back child support. But this court says I cannot marry a woman I have loved nearly my entire adult life."