The long-awaited gay-civil-rights bill that the Legislature passed and Gov. Christine Gregoire signed last month does not, unfortunately, apply in any way to an earlier law banning gay marriage. And an upcoming decision by the state Supreme Court on the constitutionality of that law, the Defense of Marriage Act (DOMA), which defines marriage as a pairing of one man and one woman, will not affect the new civil-rights law. Gay civil rights and gay marriage are, however, conflated in the public mind. And opponents of gay rights—including initiative-obsessed Tim Eyman, who filed two ballot measures last week aimed at overturning the gay-civil-rights law—clearly hope to take advantage of the confusion. While it is highly unlikely that any new law, pro or con, concerning gay marriage will be enacted by the Legislature this year, Washingtonians might think otherwise and vote in support of Eyman's rollback of gay rights. So agree state Rep. Ed Murray, D-Seattle, a gay-rights and gay-marriage champion, and religious conservative Pastor Joe Fuiten of Bothell's Cedar Park Assembly.
Members of the lesbian, gay, bisexual, and transgendered (LGBT) community are eagerly awaiting that decision of the high court on DOMA's constitutionality. In 2004, two Superior Court judges—William Downing in King County and Richard Hicks in Thurston County—declared DOMA unconstitutional. Last year, before the nine justices, lawyers for 19 gay and lesbian couples who are plaintiffs in the two cases faced off with the state attorney general's office, which is defending the statute. The state Supreme Court can take as long as it likes to decide this. But, says Chief Justice Gerry Alexander, "I'm hoping we can get the case out before the Legislature adjourns" on March 9. In an interview, Alexander refused, of course, to make any predictions as to the nature of the decision. The cases before the court challenging DOMA are Andersen et al. v. King County and Castle v. the state of Washington.
No matter when or what the court decides, should lawmakers want to respond somehow, it is likely too late for legislative action on marriage this year, says Murray. Legislative rules say that all bills have to clear at least one chamber by Wednesday, Feb. 15, but if there are enough votes, the rules can be broken. While both opponents and supporters of gay marriage say there isn't enough support on either side to break the rules, that doesn't mean both sides won't try.
There are three possible decisions that the court could make, and each leads to a different legislative scenario, says Murray. If the court rules DOMA is unconstitutional, conservative Republicans are expected to try to pass a constitutional amendment defining marriage as between a man and a woman. In Washington, the procedure for amending the state constitution is, thankfully, difficult: First, two-thirds of both chambers of the Legislature must vote in favor of a constitutional amendment, and then a simple majority of voters must ratify it. Since the Democrats control both the Senate and House of Representatives, they will not allow an amendment banning gay marriage to the floor for a vote, says Murray.
If the court declares DOMA unconstitutional but directs the Legislature to write a new marriage law, Murray will introduce a bill legalizing gay marriage. In fact, it is already drafted and on his desk. Murray is sure the bill won't pass this year and is uncertain of its immediate future. "There's a lot of education that needs to go on," he says. "There's a long way to go." While Murray had the support of every one of the 55 state House Democrats and 24 of the 26 Democratic senators on the gay-civil-rights measure, he says that not all Democrats will support legalizing gay marriage. A majority of Republicans in both chambers opposed gay civil rights and would almost certainly oppose gay marriage.
If the court upholds DOMA's constitutionality, Murray says, there is no consensus in the LGBT community how to proceed. "We all, as a community, have to have a conversation. We want marriage in the end, but I'm not sure we know how to get there," he says.
Eyman knows exactly how he wants to roll back gay civil rights, however. Last week, he filed two ballot measures aimed at overturning the new law. Since Eyman is an expert at qualifying ballot initiatives and antigay sentiment runs high among religious conservatives, it seems nearly certain that we'll be voting on gay civil rights in November. The ballot measure will not affect the court's ruling on gay marriage, but Eyman and his allies are already trying to confuse the two issues.
Murray and Fuiten, a politically savvy pastor, agree that the gay-marriage decision will affect how Washingtonians vote on the ballot measure. If the court upholds DOMA, Fuiten predicts Eyman's ballot measure will be defeated. "Then you get the sympathy vote on the homosexual side," says Fuiten. If the court overturns DOMA, however, Eyman's ballot measure will be more difficult to defeat, says Murray. Fuiten believes a pro-gay-marriage ruling by the court will launch a ballot box backlash. Not only will voters toss out the gay-civil-rights law, Fuiten thinks, they will vote against the Supreme Court justices who concurred with such a decision, and more conservative Christian Republican legislators will be elected. Gay marriage "will be the number one issue of 2006," says Fuiten.
A scenario in which Eyman initiatives pass, rolling back gay civil rights, could lead to a situation where gay marriage is legal in Washington, thanks to the Supreme Court, but there is no prohibition of discrimination in employment and housing against members of the LGBT community. "That would be weird," says Murray.