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Second Judge Strikes Down Wa. Same-sex 'Marriage' Ban

In a case headed to the Wa. Supreme Court, a Thurston County judge ruled Washington's DOMA is unconstitutional concurring with a King County's judge decision a month earlier.
( [email protected] ) Sep 08, 2004 05:31 PM EDT

A judge struck down Washington’s same-sex “marriage” ban Wednesday in a suit that will likely be appealed in the state Supreme Court.

Thurston County Superior Court Judge Richard Hicks ruled 1998 Defense of Marriage Act, which defines marriage as be between a man and a woman, unconstitutional.

Washington's constitution, which offers broader protection of individual liberties than the federal Constitution, always trumps statute law, he said.

The American Civil Liberties Union filed the case against the state in April on behalf of eleven couples across the state.

The state, defended by the Attorney General's Office, contended that DOMA was enacted to preserve the traditional definition of marriage based on the procreation between a man and a woman.

The court ruled that homosexuals were a “suspect class,” such as race or gender and the state did not have a compelling interest in limiting marriage to between one man and one woman. The opinion held that procreation was not enough reason to keep marriage between one man and woman due to a same-sex couple’s ability to produce children through artificial means. A ban on same-sex “marriage,” according to the ruling, weakens family stability.

Supporters of traditional marriage disagree with the judge’s ruling.

Bob Mischel, a chaplain at the Cedar Creek Correctional Center near Littlerock, doesn’t believe same-sex couples have a constitutional right to marry.

It is important to preserve the traditional marriage structure for the well-being of children, he told The Olympian.

"It's one of the things I think we need to preserve and I see this as tearing it down and not building up," The Olympian reported Mischel as saying. "Every one of our constitutional rights is not absolute. Each one of them has a governing condition."

Jeff Kemp, a former Seattle Seahawks football star who heads a pro-traditional marriage group called Families Northwest, doesn’t agree that Hick’s decision reflects sentiment held by the majority.

“What is new here is the judge saying in his conclusion that the morality of one class of people somehow trumps what society, and an overwhelmingly bipartisan majority of elected officials, have determined to be the definition of marriage in Washington," he said in a statement.

Hick’s decision came a month after a King County judge ruled in favor of eight same-sex couples, also represented by the ACLU. Both cases will likely be consolidated to appear before Washington Supreme Court for a final review.

Until then, attorneys said they expect Hicks to suspend the effect of his ruling during the appeal, preventing any same-sex couples to marry.

Liberty Counsel has reported that although it was not involved at the trial level, it will file an amicus brief on appeal defending the state DOMA.

Massachusetts remains the only state in the United States to legalize same-sex “marriage.”

Several states have ballot measures banning same-sex “marriage” this fall that would protect traditional marriage on a state constitutional level. Missouri has already passed an amendment banning same-sex “marriage,” while Louisiana is slated to vote on Sept. 18 on the measure.

Meanwhile, the House of Representatives will begin debates on the Federal Marriage Amendment, which will define marriage as between one man and one woman through the nation, on Sept. 20 after they return from recess. The amendment was stalled in the Senate in July.