Same-sex marriage supporters, foes say ruling hasn’t ended the fight

As the shock of Wednesday’s state Supreme Court ruling against same-sex marriage wore off for both sides – a notch or two up from despair for those in favor, a notch or two down from elation for those opposed – a familiar theme emerged.

The fight over allowing or preventing marriage for homosexual couples is not a sprint, both sides said last week. It’s a marathon.

Wherever the nation might be in that race, and whoever might be ahead now, each side was predicting an inevitable victory.

“I don’t think we lost (Wednesday). They made our run a little longer,” said Krista Benson, coordinator of the Inland Northwest Equality Project, which works for civil rights for lesbian, gay, bisexual and transgender citizens.

“The tide of social justice flows only one way,” said Judith Schaeffer, deputy director for legal affairs at People for the American Way, which backs same-sex marriage as a basic civil right. “But it’s not always a straight line.”

Opponents of same-sex marriage were quick to applaud the decision but cautious about the future.

“It’s almost like we’re starting to get a return to common sense,” said state Rep. Brad Benson, R-Spokane, who is not related to Krista Benson. He noted language in the high court ruling that said the legal protections and privileges of marriage are designed to promote stable families and protect their offspring, and only heterosexual unions can biologically have children. “The bottom line: No homosexual couple has had a child yet.”

“In general, the conservatives feel at this point, we’re ahead. But I think it’s going to go back and forth a couple of times before things settle down,” said Janice Crouse, senior research fellow at Concerned Women for America, who believes gay-rights claims will ultimately fail because science will show it is not an innate characteristic.

Wednesday was actually a day for two major court decisions surrounding gay rights. The state Supreme Court, in a 5-4 decision, said the state’s Defense of Marriage Act, which outlaws same-sex marriage, does not conflict with the Washington Constitution’s equal rights protections. In a separate case, a federal judge ruled the military’s “Don’t Ask, Don’t Tell” policy for homosexuals is constitutional and refused to block the dismissal of Maj. Margaret Witt, a 19-year Air Force veteran who is a lesbian from Spokane.

The state Supreme Court’s ruling parallels recent rulings in New York, Georgia and Connecticut. A New Jersey ruling on same-sex marriage is described by both sides as imminent, and an appeal of a same-sex marriage case was filed last week with the Maryland Supreme Court.

Voters in seven states, including Idaho, will also be asked this fall to approve laws or constitutional amendments that would make marriage exclusive to one man and one woman.

“Whenever it’s taken to the people, we win. End of story,” said Matt Daniels, founder and president of the Alliance for Marriage, which opposes same-sex marriage. That’s not just in conservative Southern states, he added; Oregon voters, too, approved such a ban.

But Schaeffer and others argue the close decision in Washington gives gay-rights activists cause for hope. For one thing, “5-4 is as close as you can get,” she notes, and because of the range of concurrences and dissent, there’s no clear majority for any viewpoint.

In fact, Justice Barbara Madsen, writing the lead opinion, seems to have suggested a legal path that might get a different result. Toward the end of her lengthy ruling, she pointedly notes that many rights taken for granted by married couples – such as getting health insurance for each other, making medical decisions, inheriting property – are more complex, agonizing and costly for same-sex couples. In an unusual note, Madsen pointed out that the ruling – at the plaintiff’s request – didn’t address the issue of whether denial of those rights to same-sex couples is unconstitutional.

“That’s a clear open door” for a lawsuit pressing for the same rights as married couples, but not actual marriage, said Hugh Spitzer, who teaches constitutional law at the University of Washington. “She’s saying that if somebody files a different kind of lawsuit … she’s open to that.”

Crouse said she expected what she described as “radical activists” to continue to file lawsuits, and some might result in an occasional victory. Eventually, the issue will wind up in the U.S. Supreme Court – but even a decision there isn’t likely to end the debate, any more than Roe v. Wade ended the abortion debate.

“Both sides are true believers … that it is a matter of moral right,” she said.

Supporters of gay rights say they may have to switch from the courts to the legislatures, to change the laws rather than overturn them. But to be successful there, they must win over the public.

For lawmakers as well as judges, “this is the kind of decision that requires a certain amount of courage,” said Lisa Kelly, a UW law professor. “That’s not always easy to muster. The more confident that legislators feel this isn’t something that’s going to kill their careers, the more likely it is they’ll step forward and give folks access to the institution of marriage.”

A January survey by independent pollster Stuart Elway suggests why. In a poll of 405 likely voters, 55 percent said they opposed gay marriage. Only 34 percent said they favor it. National polls by ABC News, the Harris Poll, CBS News and CNN have all showed similar results over the past two years.

Elway’s results showed that women and high-income earners tend to be more accepting of same-sex marriage. In Seattle, the poll suggested, a strong majority of voters – 62 percent – support it. In Eastern Washington, the number shrank to 22 percent.

But proponents see hope for their cause in the fact that the poll suggested that the younger a voter is, the more accepting he or she is of same-sex marriage. In fact, among voters age 18 to 35, a narrow majority – 51 percent – said they favor it.

“In the life of the republic, gays and lesbians will be allowed to marry,” predicted Gary Segura, an associate political science professor at the University of Washington. “The demographics and the trends are quite positive. But the immediate future, I think, is quite grim.”

Brad Benson, the Spokane legislator, said he’s not worried at the poll data suggesting that younger voters are more accepting of same-sex marriage.

“Younger voters are typically immature,” he said. “I think a fundamental shift in people’s opinion comes when you start having children and you think, ‘What kind of world am I creating for my children?’ “

Daniels argues that the only middle ground on the issue of same-sex marriage is an amendment to the U.S. Constitution that his group is sponsoring. It would define, for the nation, that marriage can only happen between a man and a woman. But it would leave to the states any decision about benefits and civil unions.

Without a middle ground, the nation will be in a sort of “permanent Cold War” between the far ends of the political spectrum, Daniels said.

Supporters of civil rights for homosexuals aren’t likely to agree that Daniels’ amendment is a middle ground, but they do talk about a compromise of a different sort.

Schaeffer talks of a differentiation in the public’s mind, and the law, of the distinction between the civil institution of marriage and the religious institution of marriage.

What she hopes for is a law that makes it clear that no clergy member who has moral or religious objections would be required to marry a same-sex couple, any more than a Catholic priest is currently required to marry someone who has been divorced.

It’s not as if allowing same-sex couples to marry puts procreating, heterosexual couples at a disadvantage, she added: “There’s no quota for marriage licenses, so if 10 same-sex couples get marriage licenses, 10 heterosexual couples won’t be denied them.”