Behind the judge's decision to change marriage ballot title

A look at a day of arguments that led to victory for supporters of same-sex marriage.

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A 2009 rally

A look at a day of arguments that led to victory for supporters of same-sex marriage.

Without a high school grammar teacher as a support staffer, Thurston County Superior Court Judge Thomas McPhee refereed contentious arguments and ruled Tuesday on the language for a proposed ballot on Washington's fledgling same-sex marriage law.

This is Referendum 74, which gay marriage opponents are trying to collect at least 120,577 signatures to put it on November's ballot, while wanting voters then to reject it.

With a referendum, a law is put to a public vote.  So a "yes" vote would say keep the new gay marriage law. And a "no" vote would say get rid of the new gay marriage law. Gov. Chris Gregoire signed the gay marriage law — SB 6239 — on Feb. 13.

The judge's final language removed a controversial phrase proposed by Attorney General Rob McKenna that the new law "redefined marriage," which gay marriage supporters have argued was prejudicial. McPhee's ruling also clears the way for gay marriage opponents to begin collecting signatures to put Referendum 74 on the ballot, now that its language is nailed down.

Three sides jousted Tuesday over Referendum 74's ballot language, with a possible semi-subliminal political advantage going to one side or the other with the people who actually read the ballot measure.

One side of the triangle was the Washington Attorney General's office, which proposed the original ballot language and wound up with both of the other parties wanting to tweak the wording. Another side was Preserve Marriage Washington, which opposes gay marriage and is gathering the signatures to put a Referendum 74 to a public vote. The third side was Washington's League of Women Voters and the Washington State Council for Parents, Families and Friends of Lesbians and Gays (PFFLAG), which supports same-sex marriage.

The three sides sparred on definitions of words, how sentences should be structured, what the Legislature intended in passing the law, and how people will read the ballot language. Complicating the disputes was the fact that the ballot measures have limits on the numbers of words in them, meaning each word is precious to each side.

A ballot measure has two written sections, and there's also a summary used only for the petitions that are circulated. One is the "Statement of Subject," which can have no more than 10 words beyond the basic legal boilerplate language. The second is the "Concise Description" of the gay marriage law with a 30-word limit. The third is the "Ballot Measure summary," which has a 75-word limit and goes on the petitions. McPhee's final ruling maxed out all three word limits, although he had to allow a hyphenated construction — "domestic-partnership law" — to meet that requirement.

In simplified terms, the three sides' initial stances were:

  • The Attorney General's office wanted the ballot title to say the measure addressed the definition of "marriage." That would create a "broad roof" that would encompass all the satellite issues, argued Deputy State Solicitor General Jeffrey Even.
  • Perserve Marriage Washington wanted the ballot measure to say the new law "redefined" marriage. Washington law says marriage is between a man and a woman, and same-sex marriage is a new definition, argued Austin Nimocks, an attorney with the Washington, D.C.-based Alliance Defense Fund, which opposes gay marriage.
  • The League of Women Voters and PFFLAG wanted "marriage for same-sex couples" and "religious freedom" in the ballot title. Their attorney Paul Lawrence argued the Legislature specifically targeted the bill at same-sex couples and it added protections that a religious denomination or minister not have to perform or recognize a gay marriage marriage because of religious beliefs.

"This is a highly contentious deal. Terms that seem innocuous may have significance (in campaigning for votes),"  Lawrence said.

Nimocks argued that putting "religious freedom" as a feature of the gay marriage law in the ballot's title would unfairly prejudice people into voting for the new law. He argued that "religious freedom" has multiple and broad definitions that go beyond marriage. "We have a different idea of whether religious freedom is protected," Nimocks said.

McPhee ruled against Nimocks, saying the Legislature specifically put a religious freedom plank into the same-sex marriage law.

Meanwhile, Lawrence argued that the new law did not redefine marriage, but instead changed who is covered by the law, an argument that McPhee agreed with.

Ultimately, McPhee ruled the ballot title should include "same-sex marriage," religious freedom and modifying domestic-partnership laws because those are the three specific items that the Legislature put into the gay marriage law.

Complicating this issue is that another group of gay-marriage opponents is separately gathering signatures to put Initiative 1192, defining marriage as solely between a man and a woman, on November's ballot. Consequently, regardless of a person's position on gay marriage, individuals could conceivably have to vote "yes" on one measure and "no" on the other measure to have a consistent stance.

Here are the two sections of final language that will go on November's ballot, if gay marriage opponents gather enough signatures to put Referendum 74 there, plus the petitions' summary language. Under the "Statement of Subject," the 10 words outlining the ballot title are in boldface, with the rest being legal boilerplate.

  • Statement of Subject: The legislature passed Engrossed Substitute Senate Bill 6239 concerning marriage for same-sex couples, modified domestic-partnership law, and religious freedom [and voters have filed a sufficient referendum petition on this bill].
  • Concise Description: This bill would allow same-sex couples to marry, preserve domestic partnerships only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.
  • Ballot Measure Summary: This bill allows same-sex couples to marry, applies marriage laws without regard to gender, and specifies that laws using gender-specific terms like husband and wife include same-sex spouses. After 2014, existing domestic partnership are converted to marriages, except for seniors. It preserves the right of clergy or religious organizations to refuse to perform or recognize any marriage or accommodate wedding ceremonies. The bill does not affect affect licensing of religious organizations providing adoption, foster-care, or child-placement.

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About the Authors & Contributors

John Stang

John Stang

John Stang is a freelance writer who often covers state government and the environment. He can be reached on email at and on Twitter at @johnstang_8