Supreme Court to hear debate on gay marriage

OLYMPIA – Both sides of the gay marriage debate arrive today at the state Supreme Court, where they will argue with great passion about the law and morality and love and family.

“As a firefighter for the city of Bellevue, I would put my life on the line any day of the week for the citizens of Bellevue,” said Celia Castle, who with her partner Brenda Bauer is one of the lead plaintiffs and the mother of two daughters. “I think it’s only fair that I have equal benefits.”

Traditional-marriage defender Jeff Kemp on Monday touted results of an October poll in which 59 percent of 402 Washington residents polled said marriage should stay defined as a union between one man and one woman.

“Kids do best … when they’re raised in a home with a mom and a dad,” said Kemp, president of Families Northwest and a former NFL quarterback. “We are trying to educate the public about the bad outcomes we’ve seen when we’ve experimented with marriage.”

In the same poll, 47 percent agreed and 51 percent disagreed that same-sex couples should have the legal right to marry – a difference within the 4.9 percent margin of error.

But in the end, the case won’t be about public opinion. It will probably boil down to how nine Supreme Court justices interpret a portion of the state constitution.

The key passage is Article 1, Section 12, which says, “No law shall be passed granting to any citizen … privileges or immunities which upon the same terms shall not equally belong to all citizens.”

Last year, judges in King County and Thurston County overturned the state’s 1998 Defense of Marriage Act, which limits marriage to a union between a man and a woman, and expressly forbids same-sex marriage. Both judges cited the state constitution’s “privileges and immunities” section, and it features prominently in briefs filed with the Supreme Court.

“The privilege of civil marriage and the various privileges legally conferred by that status are not being made equally available to all citizens,” King County Superior Court Judge William Downing said last August as he ruled in favor of same-sex marriage rights.

“The text is quite clear,” said University of Washington constitutional law professor Hugh Spitzer, who filed a friend-of-the-court brief supporting gay marriage rights.

Spitzer said the Supreme Court has used the privileges and immunities section to mandate that citizens get equal treatment when it comes to fishing licenses, for example.

Opponents of gay marriage say the state has a compelling interest in preserving the current definition of marriage, an interest that overrides the state’s interest in equal privileges.

“If the state no longer possesses the authority to limit marriage to one man and one woman, and in other meaningful ways that protect the rights of the children of such unions and of society as a whole, then the state will be hard pressed to enforce laws against bigamy, polygamy and (incest),” says a brief filed by Concerned Women for America, a conservative group.

Opponents will hold a “Mayday for Marriage Rally” in Olympia before today’s hearing. Last weekend, a pro-gay marriage march in Seattle drew hundreds.

Dozens of groups filed friend-of-the-court briefs, demonstrating how much the issue of gay marriage has galvanized people across the political spectrum. There’s even a brief filed by a group of historians, including Evergreen State College professor Stephanie Coontz, who has a book on the history of marriage coming out in May.

“Where a rigidly defined institution might crack under the pressures of societal change, marriage has evolved along with society,” the brief says, “and therefore endures as a relevant part of modern social life.”

Coontz said worries about a “marriage crisis” date back to ancient Rome, with every generation convinced that a golden age of marriage existed a few generations ago.

“It’s a very common complaint that things are changing,” Coontz said. “Marriage has played a lot of roles through history.”

The court has not given any indication when it will rule. The justices typically take months to issue their rulings.