Attorneys debate gay marriage in Olympia

OLYMPIA – An attorney for 11 same-sex couples on Thursday argued that gays and lesbians have “a fundamental right” to marry the people they love, despite a 1998 state law restricting marriage to the union of a woman and a man.

The attorney general’s office, which defends state laws, maintains that the law is constitutional. But the assistant attorney general arguing the case Thursday also suggested an alternative: setting up a statewide registry of “civil unions” that would confer most of the same rights as marriage.

Despite the hopes of some gay couples in the case, Thurston County Superior Court Judge Richard Hicks did not rule from the bench Thursday morning. He said he expects to issue his decision Tuesday via the court’s Internet Web site: www.co.thurston.wa.us/Superior/.

Whatever Hicks decides, the case is likely to merge with a similar King County case and end up before the state’s highest court.

“I think it’s going to the Supreme Court, and that’s what we want. Let’s get on with it,” said Spokane kitchen designer Marge Ballack. She and her partner of 25 years, Diane Lantz, sat in the courtroom’s front row. They’re one of the 11 couples suing the state.

Ballack and Lantz, who works in The Spokesman-Review’s shipping and receiving department, were married last year in British Columbia. Both wore their wedding rings at the hearing. Washington doesn’t recognize the marriage.

An American Civil Liberties Union attorney representing the couples argued Thursday that marrying gives people many legal rights and privileges. Among them: Being able to authorize medical care for a disabled spouse, inheritance, retirement and health benefits, and getting medical leave from work to care for a sick or injured loved one.

It’s discriminatory, the attorney said, to allow heterosexuals but not homosexuals to have the benefits of marriage. The 11 same-sex couples want the state ban on same-sex marriage – the 1998 “Defense of Marriage Act” – struck down.

“Marriage is a right that ought to be granted equally to all Washington citizens,” said Paul Lawrence, the ACLU’s lead attorney in the case.

Hicks, however, questioned whether the discrimination argument would open the door to challenges against the state bans on polygamy, incest and underage marriage.

“I’m not advocating one side or another here,” the judge said, “but that’s the kind of question that eventually pops up in everyone’s mind.”

Defending the status quo Thursday was assistant attorney general William Collins, who argued that “the historical basis for marriage” has been to have children.

“The sexual union between a man and a woman can produce a child. The sexual union between people of the same sex cannot,” he said.

Many of the benefits cited by gay-marriage proponents, Collins said, are designed to create a stable, protected environment for those children. And the state has a clear – and constitutional – interest in protecting that next generation of citizens, Collins said.

“It’s clear that same-sex marriage is not recognized in the history and tradition of the country,” Collins said. “The same can be said of interracial marriage,” the judge said. Interracial marriage was illegal in many states, including Washington, until the 1940s, when a wave of court rulings began throwing out such laws.

“Isn’t that what we’re seeing now” with gay marriage, the judge asked.

No, said Collins. Hawaii’s court decision allowing gay marriage was overruled when Hawaiian voters passed a constitutional amendment against gay marriage. A similar proposal is on Oregon’s November ballot.

“I submit that the country is not moving the same way as some courts,” Collins said.

Twenty-two conservative state lawmakers joined the lawsuit this summer, arguing against same-sex marriage. Local ones include Reps. Larry Crouse, R-Spokane; Lynn Schindler, R-Otis Orchards; Mark Schoesler, R-Ritzville, and Bob Sump, R-Republic.

The lawmakers feel that it’s their right to define marriage and offer its benefits “to those couples who provide a substantial benefit to society,” said their attorney, Steven O’Ban. “That substantial benefit is that they (married heterosexuals) provide the next generation.”

Collins suggested that the judge tell the Legislature it could approve a statewide civil-union registry, which would entitle gay couples to many of the same benefits. Hicks seemed reluctant to try to tell lawmakers – a different branch of government – what to do.

In a rebuttal, the ACLU’s Lawrence pointed out that with adoptions and fertility technology such as artificial insemination from an anonymous donor, procreation and child-rearing are not limited to married couples.

“The notion of childbearing being confined to a male-female couple is something that does not exist in the state of Washington anymore,” he said. The state has allowed gay couples to adopt for years – but those adoptive parents are barred from marrying.

“We can all agree marriage is good for children,” Lawrence said. “Marriage is good for society. Allowing same-sex couples to marry is more of a good thing, not less.”