In a 5-4 decision on July 26 with six separate opinions, a splintered Washington Supreme Court narrowly ruled that excluding same-sex couples from marriage does not violate the Washington Constitution despite what the plurality opinion termed “the clear hardship faced by same sex couples evidenced in this lawsuit.”

“The plaintiffs and thousands of other same-sex couples and their families in Washington State are left unprotected and out in the cold because of today’s decision by the Washington Supreme Court,” said Geoffrey Kors, executive director of Equality California. “Despite acknowledging ‘the clear hardship faced by same sex couples,’ the Washington court held that the Washington Constitution does not require equal treatment of all families and does not prevent the state from engaging in blatant discrimination.” He said Equality California applauded all the plaintiff couples for their courage to ask for what is right, and the Northwest Women’s Law Center, Lambda Legal, and the American Civil Liberties Union for seeing the case through. He noted that the legislature and the courts in California have consistently supported the principle that same-sex couples and their families should be treated equally under the law. The legislature voted to end discrimination against same-sex couples in California marriage law and the courts have ruled consistently that same-sex parents and their children deserve equal legal protections. “While the Washington ruling today is very disappointing, it will not affect the progress we are making and will continue to make in California in the months and years ahead,” said Kors.

“Today’s decision by the Washington Supreme Court is a terrible blow to the tens of thousands of lesbian and gay Washingtonians who have demonstrated their love and commitment in the face of ongoing legal discrimination.  It is also an affront to anyone who cares about families or about the principle of equal protection under the law,” said Kate Kendell, executive director of the National Center for Lesbian Rights. “Sadly, a bare majority of the Washington court, in a badly splintered decision, ruled to uphold this discriminatory ban that serves no purpose other than to stigmatize and harm an entire class of people.”

She said her heart goes out to the plaintiffs and the many other families in Washington who have come so far, only to have their dignity and humanity denied. “This is a sad day, and a decision that future generations of Washingtonians will look back on with deep regret,” Kendell said. But she said she was confident, however, that this decision will not slow or deter efforts to achieve the promise of full equality in California, where both the legislature and the courts in San Francisco have recognized that same-sex couples and their families are entitled to equal dignity and respect. She said that in the years ahead, every state court that considers this issue will look at it differently, based on the unique policies and constitutional mandates in each state. “Ultimately, they all will look back and recognize that there is no reason for this discrimination except bias and prejudice, which no state constitution permits,” she said. “In the meantime, we are undeterred in our determination to achieve full equality for all families in California.”

Applying the most deferential level of constitutional review, the plurality opinion, authored by Justice Barbara Madsen, held that the marriage ban is justified because the legislature could “rationally” seek to encourage heterosexual couples who procreate to marry, regardless of whether excluding same-sex couples from marriage rationally furthers any legitimate purpose or harms children with same-sex parents. The plurality opinion, said Kendell, specifically refused to address whether excluding same-sex couples and their children from the protections of marriage, as opposed to marriage itself, might violate the Washington Constitution. The plurality opinion also urged the Washington Legislature to consider “the clear hardship faced by same sex couples” and “to reexamine the impact of the marriage laws on all citizens of this state.” Two justices joined the plurality opinion, one of whom also wrote a concurring opinion.  A final justice concurred in the judgment only and wrote a concurring opinion.

In a strongly worded dissent, Justice Mary E. Fairhurst accused the plurality of “condon[ing] blatant discrimination against Washington’s gay and lesbian citizens” and of “shirking its responsibility to the people of this state to enforce the rule of law embodied in our constitution and to uphold the fundamental principles of justice.” Justice Fairhurst wrote that Washington’s marriage ban violates the fundamental right to marry, discriminates based on sex, and lacks even a rational basis for the obvious and serious harms it imposes on same-sex couples and their families. Three other justices joined Justice Fairhurst’s dissent.  Two of those justices also wrote their own dissents.              

The decision by the Washington Supreme Court was a consolidated appeal from two cases – Andersen v. King County and Castle v. Washington. The Andersen case was brought by the Northwest Women’s Law Center and Lambda Legal on behalf of eight King County couples. The Castle case was brought by the ACLU on behalf of eleven same-sex couples. In both cases, the trial court decisions held that excluding same-sex couples from marriage violated the Washington Constitution.