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SGN Interview: Gay marriage advocate, State Supreme Ct Justice Fairhurst
SGN Interview: Gay marriage advocate, State Supreme Ct Justice Fairhurst
by Mike Andrew - SGN Contributing Writer

"All court cases are important to the parties involved," says State Supreme Court Justice Mary Fairhurst. "Some cases are notable for the impact they can have on the larger group. Our growth management cases, for example: Andersen. Washington State Farm Bureau v Gregoire. Madison v State."

Fairhurst is running for a second six-year term on the Washington State Supreme Court, and will appear on the primary ballot on August 19. Since she has only one opponent, Michael J Bond, the race will be decided in the primary and will not appear on the general election ballot in November.

Of the cases Fairhurst cites as having a broad social impact, Andersen v Sims, is perhaps most familiar to the LGBT community. With its companion case, Castle v State, Andersen was the marriage equality case decided by the State Supreme Court in July 2006. In a fractured 5-4 decision that featured six written opinions, the Court ruled that the state Defense of Marriage Act (DOMA), specifying that marriage could only occur between one man and one woman, was constitutional.

Fairhurst wrote a notable dissent which was also signed by three other Justices, "the most-signed opinion," she notes with pride. "The majority said the State has a rational basis to intervene. Does it? In my dissent I argued there was a fundamental right to be married, and the State was unconstitutionally depriving some people of that right."

While Fairhurst stands by her reasoning, she doesn't believe that Washington state courts will order marriage equality in the near future. "The Court follows stare decisis [doctrine of precedent]. So as far as the Court goes, it's settled unless circumstances change or the Court decides Andersen was wrongly decided. At some point, interested parties will think it's time to bring another action. We had Plessy v Fergusson and then we had Brown v Board. So the Court could decide differently."

She notes, however, that the State Legislature has made significant changes to the Domestic Partnership law and could enact marriage equality by statute. "The California decision will probably also be influential," she adds, referring to the California State Supreme Court decision upholding marriage equality.

Of the other cases she believes are of broad social significance, Washington State Farm Bureau v Gregoire dealt with fallout from the 1993 initiative I-601, which limited the Legislature's ability to raise taxes and increase state spending; and Madison v State addressed felons' right to vote.

Fairhurst wrote the majority opinion in a controversial recent case protecting privacy rights for teachers who have been accused of molesting children. A 6-3 majority held that accused teachers' names could be released only if there had been an actual finding of misconduct, or if disciplinary action had been taken by a school district. Writing for the majority, Fairhurst said "The mere fact of the allegation of sexual misconduct toward a minor may hold the teacher up to hatred and ridicule in the community, without any evidence that such misconduct ever occurred."

The issue was brought before the court by 15 teachers from the Seattle, Bellevue and Federal Way school districts. The teachers sued to prevent their districts from releasing their identities in response to a public disclosure request by The Seattle Times.

"This is a tough area," Fairhurst says. "There are competing values. Newspapers and the media generally are very interested in getting information under the Public Disclosure Act, and they play a very important role. At the same time there are many exemptions, and the argument is over who they apply to&."

"I understand it's frustrating to the newspapers, but we have to issue opinions based on the statute as written," she adds. "The legislature is holding hearings on this issue, and they can write law to say clearly these people are not protected. I don't get to write things into or out of legislation."

Fairhurst believes a good Justice should be "fair and impartial, hardworking, someone who studies the facts and applies the law astutely. Someone who understands the three branches of government, how they are distinct, and how they are required to interact. Someone who treats people with dignity and respect."

Fairhurst has been rated "Exceptionally Well Qualified" by every organization that rates judicial candidates, including the King County Bar Association and QLaw, the LGBT Bar Association. In spite of rumors that she might attract serious opposition from right-wing groups because of her opinions in controversial cases like Andersen and the Court's growth management decisions, Fairhurst notes little organized opposition. "I'm not aware of any independent expenditure campaigns, and Mr. Bond hasn't raised very much money," she says.

Nevertheless, Fairhurst has been hard at work on her campaign. "Most parts of campaigning I enjoy," she says. "I love talking to people. I love talking about the courts, how they work, how they influence people's lives & I don't love the parts where my cases get mischaracterized, or where I'm unfairly attacked."

Fairhurst believes the cases most often mischaracterized are McNabb v Dept of Corrections, which dealt with right to privacy issues arising from the case of a prisoner force-fed by the State Department of Corrections; and Central Puget Sound Regional Transit v Miller, an eminent domain case involving Sound Transit. "It's difficult when folks haven't read the briefs," she says.

Fairhurst graduated from Gonzaga University and Gonzaga University Law School. She began her legal career as a law clerk for the State Supreme Court. She then served in the Washington Attorney General's office under Christine Gregoire and Ken Eikenberry.

Fairhurst has served as the president of the Washington State Bar Association. She was the second woman and youngest attorney to hold this position. She has also served as President of Washington Women Lawyers. Fairhurst worked on the constitutional amendment to increase the rights of crime victims. She has also organized statewide conferences on domestic violence.

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