September 1, 2006
Volume 34
Issue 35
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State Supreme Court asked to reconsider denial of marriage to same-sex couples
State Supreme Court asked to reconsider denial of marriage to same-sex couples
"This rule allowing motions seeking reconsideration exists because of cases exactly like ours," said the Northwest Women's Law Center's Nancy Sapiro.

by Devin Glaser - SGN Contributing Writer

The Washington State Supreme Court has been asked to reconsider its July 26, 2006, 5-4 decision to uphold the state's Defense of Marriage Act (DOMA), which bar same-sex couples from access to marriage. The lawyers for the 19 plaintiff couples filed the motion on Tuesday.

"We felt it was very important to exhaust every possibility to get the court to recognize the importance of ruling in favor of marriage equality," said Doug Honig, Director of Communications for the ACLU of Washington, told Seattle Gay News. "You can file a motion to reconsider if there are some fundamental flaws in this decision, and we felt there were. It is extremely important and there is a legal avenue available to ask the court to reconsider, and we think we should pursue that.

"Aside from disagreeing with the outcome, there were some basic flaws in the courts reasoning. The court didn't really come to grips with the harms that are done to families who are not able to marry. They tied marriage to procreation. The reality is that many opposite sex couples get married without any intention of having kids, and many Gay parents already are raising kids and are acknowledged to be outstanding parents. So it doesn't make sense that you can deny a group of people the right to marry based on the fact that only heterosexual people are parents when many heterosexual people are not parents and many Gay couples who would like to get married are parents."

Jon W. Davidson, legal director of Lambda Legal, agreed. "We still believe that Washington's Constitution requires that same-sex couples be allowed to marry," he said. "Instead of explaining why our clients couldn't marry, the court told us why marriage is good for different-sex couples. Barring same-sex couples from marriage only hurts same-sex couples and their families- it doesn't help anyone."

The narrow decision revealed a diversity of opinion among the justices. "The Legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race and furthers the well-being of children by encouraging families where children are reared in homes headed by children's biological parents," wrote Justice Barbara Madsen on behalf of the majority.

Justice Mary Fairhurst, however, wrote that justices who upheld DOMA "condone blatant discrimination against Washington's Gay and Lesbian citizens in the name of encouraging procreation, marriage for individuals in relationships that result in children, and the raising of children in homes headed by opposite-sex parents, while ignoring the fact that denying same-sex couples the right to marry has no prospect of furthering any of those interests."

The rules of the Supreme Court dictate that parties have 14 days from the issuance of a decision to petition the court for reconsideration. An extension had been granted to the attorney's for the plaintiffs, which expired at 5 p.m. on Tuesday. The justices could deny the motion, request additional oral argument or issue a second decision. Motions to reconsider are rarely granted.

"This rule allowing motions seeking reconsideration exists because of cases exactly like ours," said the Northwest Women's Law Center's Senior Counsel Nancy Sapiro. "Since the stakes in this case are so high - whether or not the state will recognize our clients' families and thousands like them throughout the state - we felt that we had to use every option available to us to show the justices the logic behind our arguments and how their decision as it is currently reasoned falls short."

Eight of the couples are represented by Lambda Legal and the Northwest Women's Law Center in Anderson v. King County and the ACLU represents 11 couples in Castle v. State. The two cases were decided jointly last month.

In August 2004, King County Superior Court Judge William Downing ruled that the state Constitution guarantees basic rights to Gay and Lesbian people. The DOMA law, he concluded, violated those rights. Thurston County Superior Court Judge Richard Hicks issued a similar decision one-month later.

SGN Staff Writer Robert Raketty contributed to this report.

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