Probably the most prescient and correct decision of Judge William Downing’s career was one that got tossed out by a higher court. An appreciation of King County’s most senior judge, who is retiring this week.
In the books about the big civil-rights movement of this young century — the fight for gay equality — Judge William Downing is lucky if he gets a passing mention in the footnotes.
The obscurity’s just fine with him, he insists.
“I didn’t write that opinion for posterity or for the parties involved or to try to get it approved by the state Supreme Court,” Downing recalled for me Tuesday. “I wrote it for the public. And I can only hope that I advanced the dialogue at a crucial time.”
The longest-serving judge currently on the King County Superior Court is retiring Friday, after 28 years. Downing, 67, is a motorcycle-riding, Dickens-and-Poe-quoting institution who has presided over everything from high-profile divorce cases to death-penalty and murder trials to the ritual tossing out of a Tim Eyman initiative.
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To thousands of students he is known as the judge who writes surreal, challenging fictional cases for the annual Mock Trial program (this year’s case is about a driverless car in which the computer decides to crash and kill the occupant rather than run into children on the side of the road).
But it was a case that came to him by default, and that he effectively lost, that marked the most controversial — and shining — moment of his career.
It was 2004, a few months after Massachusetts became the first state in the nation to allow gay marriages. But here, state legislators had passed a Defense of Marriage Act, limiting marriages to one man and one woman. Eight gay and lesbian couples applied for marriage licenses, and when they were denied, they sued.
At Superior Court, the case was a stinker. Several judges turned it down. The court would only be a “way station” for a case that ultimately would be decided by more elevated judges. So why take on all that controversy and second-guessing?
“It landed on my desk,” Downing says. “I didn’t have strong feelings on the issue at the time. So I figured ‘why not?’ ”
He became the first trial-court judge in the nation to rule that a state Defense of Marriage Act was unconstitutional.
That 2004 ruling launched Washington State onto the front lines of the of the gay-equality movement.
Downing was briefly hailed as a civil-rights hero but also derided as “the stench from the bench” and “the worst judge in Washington.” Fox News’ Bill O’Reilly denounced him: “Seattle jurist William Downing says he knows what’s right for America, and he will change the definition of marriage all by himself … simply can’t have that in America. Judge Downing is not in charge.”
But then, in 2006, the state Supreme Court surprisingly echoed O’Reilly, tossing out Downing’s ruling as an overreach. It meant gay marriage would remain illegal in the state until late 2012, when voters approved a marriage referendum.
What’s fascinating about reading Downing’s defunct 26-page decision today is how exactly right this wrong ruling turned out to be. Unlike other courts, which had focused mostly on the contractual benefits of marriage being denied to gay couples, Downing instead spotlighted the importance of marriage to children.
“It turned out to be a very simple issue to me,” he says today. “Does it help children to have a gay-marriage ban on the books? No. It was hurting those children who were already being raised by gay parents. And there was no group of children out there that it was actively helping. So that was it. The state’s rationale for a gay marriage prohibition just dissolves.”
Well, sort of. It took eight more years in this state, and 11 more nationally. But if you read the ultimate 2015 decision in the U.S. Supreme Court that legalized gay marriage everywhere, it’s remarkable how closely it tracks Downing’s arguments. Right down to his main point that the government had no basis for saying it had banned gay marriage for the children.
All of this may sound obvious after the fact. But at the time it marked a crucial shift in the debate on gay marriage. It’s when it started to be more about love and family, rather than a civil contract for tax or inheritance purposes.
Wrote Downing in 2004 of the eight couples who wanted to marry: “There is not one among them that any of us should not be proud to call a friend or neighbor or to sit with at small desks on back-to-school night.”
That’s the whole deal right there. Once you’re sitting with gay parents at small desks on back-to-school night, as so many of us were, it became untenable to go on arguing their families must remain second-class.
Downing says that when he was in law school, a professor told him that judges “do not feel — they think, they reason, and they hold, but they never feel.”
Thankfully for King County, for the past 28 years in this courtroom, that didn’t turn out to be the whole truth.