Thursday, June 08, 2006

Washington State = Waiting State

African elephants can have longer gestation periods than the Washington State Supreme Court has taken -- so far -- with its same-sex marriage ruling. The wrinkled gray things (the elephants, that is) can hold a fetus for 22 months. So far the court has sat on the case 15 months after the arguments.

Six months ago, we reported that it was any Thursday now. According to an update in the Seattle Times, the joke has gone from any day now to anybody's guess.

So what's the clog?

The case was pretty much what went before the Supreme Judicial Court here. However, in this case, the state has a DOMA, one-man/one-woman law in question.

There is another minor kink, in that Olympia doesn't have miscegenation-based laws forbidding out-of-staters from marrying there if those marriages would conflict with the where they normally reside. So folk could marry at a church, city hall or Starbucks in Seattle and take their potential lawsuit home right away.

The judges there can't discuss pending cases. So we are left with speculation, expert and otherwise.

How Washington Works

The funky procedure in the court randomly assigns a case to a justice. After arguments, that justice decides an outcome and tries to convince all or a majority to agree.

If a majority agrees, the first justice who disagrees writes the dissenting opinion. If a majority disagrees, the justice who has the case responsibility does that.

Then majority and dissenting opinion drafts get review and comment by the other justices.

This could be a major delaying factor, according to former Washington Supreme Court Justice Phil Talmadge. "You have opinions circulating to nine chambers. It's time-intensive and a fairly slow process if there are multiple opinions."

The three likely outcomes might be:
  1. Strike the DOMA, immediately legalizing SSM.
  2. Uphold the DOMA.
  3. Chicken out and pass the issue to the legislature.
Meanwhile, a lot of legal experts agree that the delay means it is neither unanimous nor a clear majority. "If they were going to uphold DOMA, that would have been an easier and quicker decision," said Seattle University Law Professor Lisa Brodoff.

Numerous anti-SSM groups concur.

So, we are back to checking in on Thursdays, when the court announces any decisions.

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