Washington Attorney General Bob Ferguson is filing friend-of-the-court briefs with the U.S. Supreme Court this week in two historic same-sex marriage cases that go before the high court in late March.
“In our state, the Legislature and the voters have spoken on this issue and came down strongly in support of marriage equality. Our involvement in these two cases is consistent with the will of the voters,” Ferguson said in an interview.
The Democrat said lawyers in his Office of Solicitor General had taken the lead with counterparts in Massachusetts and New York to draft briefs in one case involving California’s voter-approved ban on gay-marriage and another in a New York tax case.
Since Referendum 74 took effect early in December, Washington has been one of nine states plus the District of Columbia that permit marriages for same-sex couples.
Joseph Backholm of the Family Policy Institute of Washington, which led the campaign to reject Washington’s same-sex marriage law, said he is optimistic the U.S. Supreme Court will “acknowledge that the Constitution is silent on the issue of how marriage should be defined.”
“This is a policy discussion that should take place in legislative bodies around the country, and that is what is happening now,” Backholm said. “For the court to impose same-sex “marriage” on the entire country, including 31 states that have constitutional amendments defining marriage as a relationship between a man and a woman, would remove the discussion from the democratic process and further disempower the people whose consent is allegedly required for our government to properly function.”
Ferguson’s position on same-sex marriage is a change from his predecessor. Former Attorney General Rob McKenna, a Republican, opposed R-74 during last year’s gubernatorial campaign.
Ferguson hopes to offer the state’s unique perspective in both cases.
In the U.S. v. Windsor case involving a New York widow who was denied a estate tax refund related to her lesbian spouse’s estate, equal protection under the law is at issue. Washington can point to same-sex couples who are disadvantaged because their marital rights are not recognized by the federal government, according to Purcell. The negative impacts on families include, treatment in the tax code and the ability to receive spousal Social Security or military benefits.
In the California case challenging Proposition 8’s amendment of the state constitution to bar same-sex marriage, Washington would share its “firsthand experience with the benefits of marriage equality and that the sky in fact is not falling as the proponents of Prop. 8 claim,” Solicitor General Noah Purcell said.
Fourteen states — Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Massachusetts, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington — signed onto the filing in the California case known as Hollingsworth v. Perry.
State Rep. Jamie Pedersen, a proponent of the gay marriage law and a family-law attorney, said he can’t say Ferguson’s briefs will change any views on the court. But he thinks an amicus brief can make arguments that are “awkward or perceived as risky for the parties” — and sometimes explore a line of reasoning that can be appealing for individual members of the court.
Pedersen is “cautiously optimistic” about overturning the federal Defense of Marriage Act, in which Congress defined marriage as a union between one man and one woman. He speculated that some justices might see the law as Congress intruding on an area of family law that had been the province of states for 220 years.
At the same time, he said he is anxious about the California case, in which deference to state law could work against rights of gay men and lesbians.