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Same-sex marriage, civil unions, & domestic partnerships

Washington State

Sponsored link.

Quotations:

	"If marriage means everything, it means absolutely nothing." Dr. James C. Dobson, of Focus on the Family.
	"A loving man and woman in a committed relationship can marry. Dogs, no matter what their relationship, are not allowed to marry. How should society treat gays and lesbians in committed relationships? As dogs or as humans?" A posting to an Internet mailing list; used by permission of the author.
	Marriage is: "the most important relation in life [and]... the foundation of the family and of society, without which there would be neither civilization nor progress." U.S. Supreme Court, Maynard v. Hill, (1888).
	"Although many may hold strong opinions on the subject, the fact is that there are no scientifically valid studies tending to establish a negative impact on the adjustment of children raised by an intact same-sex couple as compared with those raised by an intact opposite-sex couple." Hon. William L. Downing of King County Superior Court, Washington state.

Overview:

In 1998, the Washington state legislature passed a Defense of Marriage Act (DOMA). It restricts marriage within the state to the union of one man and one woman. The law is, to a degree, redundant, because two Washington state statutes already specified that marriage must be between a man and a woman. ₁ The intent of the Act was to specifically deny all same-sex couples the right to marry.

In 2004-MAR, eight gay and lesbian couples who are all in long-term committed relationships filed a lawsuit King County Superior Court in Seattle, seeking permission to marry. Hon. William L. Downing issued his ruling in 2004-AUG. He declared the DOMA law to be unconstitutional.

In 2004-APR, eleven similar gay and lesbian couples filed a lawsuit in Thurston County, also seeking the right to marry. Superior Court Judge for Thurston County, Richard Hicks, also ruled that the DOMA law was unconstitutional.

Both judges left the decision whether to order the state to start issuing licenses to same-sex couples to a higher court. A decision by Washington state's Supreme Court is expected during 2006-APR.

In 2006-JUL, the state's Supreme Court ruled that the DOMA law is constitutional. Same-sex couples and their children are thus denied access to marriage and protection under law equal to opposite-sex couples.

King County lawsuit -- Andersen v. Sims:

2004-MAR: King County Executive, Ron Sims was approached by a six same-sex couples who live in the county. They asked that marriage licenses be issued to them. He said that we would not comply, because the licenses would be without legal meaning in Washington state. He did invite the couples to sue the state. Four lesbian and two gay couples filed a lawsuit seeking permission to marry. Two other couples later joined the lawsuit. Two of the plaintiffs are Protestant ministers; one is a Jewish cantor. They contended "...that the challenged [marriage] statutes... ₁ serve to deprive them, as members of a suspect class (homosexuals), of a fundamental right (the right to marry) and that, therefore, on both bases, the court should hold those statutes up to the higher constitutional standard." ₂ That is, the marriage statutes must pass a more rigorous test in order to be found constitutional. In order to be considered constitutional, the law would then have to satisfy a "compelling state interest" and must be written so that they are "narrowly tailored" towards that end.

2004-AUG-4: Hon. William L. Downing of King County Superior Court in Seattle issued his ruling. He ruled that "The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process." ₃ He declared that the state's Defense of Marriage Act (DOMA) is unconstitutional. This is the first time in history that a court in the U.S. has declared a DOMA act to be unconstitutional.

He quoted a number of sections of the Washington state constitution which have a bearing on this case:

A "frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government."

"No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." Article 1, Section 12.

"No person shall be deprived of life, liberty, or property, without due process of law." Article 1, Section 3

"Equality of rights and responsibility under the law shall not be denied or abridged on account of sex." Article 31, Section 1. This is popularly known as the Equal Rights Amendment, or ERA.₄

Judge Downing drew an analogy between the case before him and a 1967 U.S. Supreme Court decision in Loving v. Virginia which determined that inter-racial, opposite-sex couples had a right to marry in spite of anti-miscegenation laws which were then in place in Virginia and 15 other states. Downing wrote:

"The social issue before the Court is one about which people of the highest intellect, the deepest morality and the broadest public vision maintain divergent opinions, strongly held in good faith and all worthy of great respect." ₄

"...the American Psychological Association has now officially endorsed same-sex marriage. ₅ In addition to Lawrence [v. Texas], supra, many courts as well as legislatures across the United States, Canada and Western Europe have given new recognition to 'gay rights,' including key developments in the area of same-sex marriage."

He examined a number of traditional reasons that have been suggested to support the exclusion of same-sex couples from marriage. He found all three lacking in validity:

"Morality requires it."

"Tradition compels it."

"The institution of marriage is threatened."

Judge Downing commented on the reasons put forth by the state and the interveners. Their main argument was that continuing the ban on same-sex marriage (SSM) encourages "...procreation and the raising of children in a healthy, nurturing environment." He countered these arguments by pointing out that:

The state has never required married couples to procreate.

The state has never denied marriage licenses to a couple who were "unable or disinclined to procreate."

There is no logical way in which banning SSM will encourage procreation. [Author's note: In our opinion, the judge erred in this statement.

Presumably some of the same-sex couples in Washington who seek to marry include a partner with a bisexual orientation. If SSM is banned, the bisexual might decide to break off their relationship and seek out a new relationship with a member of the opposite sex who they would be able to marry and with whom they could have children. Also, if religious conservatives are correct, and sexual orientation is changeable, then banning SSM would encourage homosexuals to become heterosexuals, and also seek out an opposite-sex partner to marry. However, what little data that is available on reparative therapy and transformational ministry indicates that the success rate at changing individual's sexual orientation is a very small percentage of 1%]

Referring to the children of the plaintiffs, who were either conceived by In-vitro fertilization or adopted, he said: "It rationally serves no state interest to harm certain of those children by devaluing the immediate families that they have joined."

He determined that there is no logical way in which denying SSM would promote stable families and be good for children.

He predicts that: "Gay and lesbian couples will feel the human instinct to wish to raise children, they will have available either the supportive adoption laws or the technological means to begin raising a family and they will enjoy the increasing public acceptance of such families. All this is certain."

He quoted the rulings of:

The Vermont Supreme Court in 1999: "If anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against."

The Massachusetts Supreme Court in 2003. "Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of �a stable family structure in which children will be reared, educated, and socialized."

He noted that: "...there are no scientifically valid studies tending to establish a negative impact on the adjustment of children raised by an intact same-sex couple as compared with those raised by an intact opposite-sex couple. The offered studies, anecdotal experiences and opinions regarding children from broken homes or children raised by a single parent have no logical relevance. Unlike the documented impact of children�s exposure to domestic violence and substance abuse in the homes of lawfully married heterosexual couples, as to children raised by intact same-sex couples there is no science, only questionable assumptions based on stereotypes."

He concluded that: "The Court concludes that the exclusion of same-sex partners from civil marriage and the privileges attendant thereto is not rationally related to any legitimate or compelling state interest and is certainly not narrowly tailored toward such an interest....After long and careful reflection, it is this Court�s firm conviction that the effect of today�s ruling truly favors both the interest of individual liberty and that of future generations." ₄

Reactions:

Jennifer Pizer, lead counsel in the case for Lambda Legal Defense said: "Judge Downing saw the couples in the courtroom and he's recognized that they are full and equal citizens of Washington. No more and no less."

King County Executive Ron Sims was a defendant in the case because of his official position. He said the ruling was a powerful affirmation of equal rights. "I think marriage is an incredibly wonderful institution and that people who love each other should be allowed to be involved in it." ₃

Thurston County lawsuit -- Castle v. State of Washington:

2004-APR: Eleven gay and lesbian couples from across the state of Washington filed a similar but separate lawsuit. "Plaintiffs include a police officer, a firefighter, a banker, a nurse, a retired judge, a college professor, a business executive, and others. They reside from Seattle to Spokane and from Port Townsend to Hoquiam." One couple has been together for 3.5 years; one for 6 years; the rest range from 11 to 31 years together. ₁₁ All sought simply the right to marry in Washington state. They have also asked that same-sex marriages which have been solemnized elsewhere -- e.g. in Massachusetts or Canada be recognized in the state. Their counsel claims that they have located over 300 rights and responsibilities "legally attached to the status of being civilly married...." which the state gives to every married couple, but denies to all same-sex couples. ₆

2004-SEP-9: Superior Court Judge for Thurston County, Richard Hicks, ruled that gays and lesbians are part of a protected, minority class. He also ruled that the state Defense of Marriage Act (DOMA) that denies them the right to marry is unconstitutional. In addition, two sections of the marriage laws which define marriage as between one man and one woman are also unconstitutional. Judge Hicks wrote:

	"The clear intent of the Legislature to limit government approved contracts of marriage to opposite-sex couples is in direct conflict with the constitutional intent to not allow a privilege to one class of a community that is not allowed to the entire community." ₆
	"What fails strict scrutiny here is a government-approved civil contract for one class of the community not given to another class of the community. Democracy means people with different values living together as one people. What can reconcile our differences is the feeling that with these differences we are still one people. This is the democracy of conscience." ₇
	That the DOMA law places same-sex families and their children at risk. He wrote: "Same-sex [lesbian] couples can have children through artificial insemination and same-sex [gay and lesbian] couples can adopt children all with government approval. Where is the protection for these children?" ₇
	"Persons in a homosexual relationship may seek the same personal dignity and liberty to make personal choices as heterosexual persons do." ₈

According to the ACLU-Washington: "The court rebuffed arguments that same-sex marriage destabilizes the family, noting that same sex couples have already been found to serve as capable foster and adoptive parents. In his ruling, Judge Hicks pointed out that granting marriage equality to same-sex couples strengthens our community, saying, 'Our fundamental principle is that we share the freedom to live with and respect each other and share the same privileges or immunities. We need each other'." ₁₁

Reactions were as expected:

Peter Nicolas is a University of Washington law professor who teaches a course in sexual-orientation law. He said: "The court is taking a significant step in deciding the issue this way."

Pastor Joseph Fuiten, president of Washington Evangelicals for Responsible Government opposes SSM. He referred to the judge's ruling as "an astounding widening of rights for homosexuals." _{7 9} He also said: "This is a quantum leap in social change... Even though homosexuality is a condition in which people both enter and leave, the court has determined that they represent a class of people analogous to a race of people." He is apparently referring to bisexuals who sometimes switch between opposite and same-sex relationships, and/or to homosexuals who sometimes decide to remain celibate for periods in their life.

Brenda Bauer who is the lead plaintiff along with her partner, Celia Castle, said: "This has been a life issue for us: being a family and having that recognized."

State Representative Gigi Talcott, a supporter of an amendment to the state constitution to permanently deprive same-sex couples of the right to marry, told the Seattle Post-Intelligencer that the ruling is: "...just so far out of the mainstream thinking. I think it's a classic case of what an activist judge can do." ₈

Another plaintiff, Jeff Kingsbury, said that it is fitting that a state as socially progressive as Washington could carry same-sex marriage forward. "I believe the citizens of our state are ready for this and want it. In a few years, we'll all know at least one same-sex married couple and be wondering what all the fuss was about."

State Senator Val Stevens, (R-Arlington) was a key sponsor of the state's DOMA law. She issued a statement which said, in part: "The Legislature passed DOMA to prevent the erosion of traditional families, acknowledging that marriage is between a man and a woman."

Representative Ed Murray (D-Seattle), who is openly gay, said, "The Legislature hurt marriages and families when it passed this law. Politicians always talk about supporting marriage and family. This is the acid test."

Assistant Attorney General William Collins said that it was "interesting that a trial court came to the conclusion" that gays and lesbians are a protected class. He said: "I don't think those trial-court rulings go up on appeal with any presumption of correctness. The [high court] will be interested in what the trial-court judges say, but they will make their own independent decision about the constitutionality of the law. Ultimately, the Supreme Court will decide if they hear the case, when they will hear the case and how they will hear the case."

Kathleen Taylor, executive director of the ACLU of Washington, issued a statement which said, in part: "This is an important victory for fairness and equality. The judge ruled that government must treat same-sex couples the same as other couples and that two consenting adults who wish to enter into the commitment of marriage cannot be denied its benefits simply because they are of the same gender." ₈

Paul Lawrence, the plaintiffs' lawyer from the American Civil Liberties Union (ACLU) said that the judge's ruling was "well-grounded in state constitutional-law principles. He makes a very clear finding that the state Constitution requires equal treatment of all citizens and that state marriage laws don't provide equal treatment and are therefore unconstitutional....this is exactly the type of case that the state Supreme Court will take directly on review." -- i.e. it might bypass the State's Court of Appeals.

Washington Supreme Court:

The State appealed both the Thurston and King County cases to the Washington State Supreme Court. Washington Evangelicals for Responsible Government predicted that:

"The Thurston and King County cases will be consolidated and appealed to the Washington Supreme Court. The attorneys for the same-sex couples, the Attorney General's office, and the King County prosecutor's office have agreed to an expedited appeal, which means the Supreme Court may hear oral arguments in [2004-] December." ₉

The cases were delayed until 2004-MAR. Because of their similarity, they will be heard together.

	2005-MAR-08: Oral arguments: Oral arguments were heard on MAR-08 before the Washington Supreme Court in the Andersen and Castle cases. The plaintiffs are backed by the Northwest Women's Law Center, Lambda Legal and ACLU-WA.
	2005-DEC-21: Court decision expected soon: According to Focus on the Family, the state's supreme court could announce its decision as soon as DEC-29. Equal Rights Washington, the state's largest gay-positive group, is organizing committed same-sex couples to marry as soon as possible if the court decides in their favor. Both were wrong. Lynn Wardle, a law professor at Brigham Young University, speculates about the motivation for the group to have many same-sex couples marry quickly. He said: "It certainly does make it a little more difficult to persuade people because the argument will be asserted, 'Well, you're taking away rights that the court gave us'." It is certainly a lot simpler do deny equal rights to a group of people than it is to forcibly divorce hundreds of loving, committed couples against their will. In late 2005-DEC, Focus on the Family staff speculate that a sudden influx of many same-sex couples seeking to marry could generate a circus atmosphere at the registry office. Focus suggests that this could give the impression that the couples were not taking marriage seriously. What was truly remarkable about this article on Focus on the Family web site is its title. It says simply: "Washington May be the Next to 'OK' Gay Marriage." Every other conservative Christian news source that we have seen has always put "marriage" in quotation marks in instances like this. They do this presumably to indicate that they don't really regard same-sex marriage as a real marriage. In this instance, Focus abandoned the quotation marks, implying that same-sex marriage is valid. This is a remarkable development....or perhaps an oversight. The quotation marks are still missing, as of 2006-MAR-31. ₁₃
	2006-MAR-25: Court decision still expected "soon:" Focus on the Family repeated its expectation that "The state Supreme Court of Washington is expected to rule on gay marriage" shortly. ₁₄
	2006-MAR-31: Human Rights Campaign anticipates ruling: Brad Luna of the gay-positive group Human Rights Campaign, said: "Washington state's Supreme Court right now, any day, is going to deliver their ruling on marriage, so it's something that we've been waiting for a while now to happen." ₁₅
	2006-JUL-26: State supreme court finds DOMA to be constitutional: The court decided by a vote of 6 to 3 that the state's Defense of Marriage Act does not violate the Washington State Constitution. This decision overturns trial court decisions in King and Thurston Superior Courts in this case. Justice Barbara Madsen wrote: "...the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers the State's legitimate interest in procreation and the well-being of children...[Our] decision is not based on an independent determination of what we believe that law should be. A judge's role when deciding a case...is to measure the challenged law against the constitution and the cases that have applied the constitution. Personal views must not interfere with the judge's responsibility to decide cases as a judge and not as a legislator." _16,17

State legislature activity:

2007-MAR-01: Domestic partnership bill passes Senate: After a long and emotional debate, a bill to authorized domestic partnerships passed by a vote of 28 to 19. The bill would give a few of the state rights automatically given to married couples to same-sex couples and unmarried heterosexual couples where one spouse is aged 62 or older. Included are the right to:

	visit their spouse in hospital;
	give consent for health care if a partner is ill and not competent;
	authorize autopsies and organ donations;
	arrange funerals for their spouse,;and
	obtain inheritance rights where there is no will.

Reactions were as expected:

	Sen. Ed Murray, (D-Seattle), the bill's lead sponsor, said he supports extending the right to marry to gay and lesbian couples. But he emphasized that this bill does not do that; it only extends some basic rights to those couples. He said: "Imagine for a moment your spouse was in the hospital and dying and you could not go into the room and hold her hand. This bill will do the work of justice and end that hurt."
	Senator Don Benton, (R-Vancouver) said: "Call it what you want, but this bill is absolutely conferring rights that are reserved for married couples" to gays and lesbians and the elderly.
	Sen. Val Stevens, (R-Arlington), said: "This bill is not about equal rights, it is about changing society in ways that will ultimately harm it." ₁₉

2007-APR-10: House passes bill: The domestic partnership bill passed the state House easily with a vote of 63 to 35.

Rep. Lynn Schindler, (R-Spokane) said:

"My vote is to protect the institution of marriage. The next step is to solidify the domestic partner relationship in a marriage contract, and that is why I am voting no on this bill ... because the institution of marriage is how this civilization has been organized for thousands of years."

Rep. Jay Rodne, (R-North Bend), said:

"The incentive for this bill is a desire to have a debate about marriage," Rodne said. "I think this body ought to have that debate. Let's bring forth a marriage bill, have that debate, make those votes and vote our conscience. What we do today really clouds the issue. It really undermines the incentive for individuals to get married. It further erodes and weakens an already beleaguered institution to our detriment."

Sen. Ed Murray, (D-Seattle), the bill's lead sponsor, said:

"In 1998, this Legislature shamefully acted to discriminate against gay and lesbian families when they passed (Defense of Marriage Act). Today, with the passage of the domestic partnership bill, we begin to undo that shameful act by providing some protections. "I think we are closer to [same-sex] marriage than people realize, but it's still a multiyear process, it's still going to take a lot of work." ₂₀

2007-APR-21: Domestic partner bill becomes law: Governor Chris Gregoire signed a bill that allows same-sex and elderly couples to register as domestic partners. It gives them some of the state benefits automatically given to married couples. Included will be the right to visit their spouse in hospital, to authorize autopsies and organ donations, and to obtain inheritance rights where there is no will. ₁₈

2007-JUL-22: Registration begins: The new domestic partner bill comes into effect today. Couples can either register with the Secretary of State in Olympia, or download the form from the Web site and send it in to register and receive a certificate of the partnership. ₁₈

References used in this essay:

Washington state statutes governing marriage: R.C.W. 26.04.010 and 26.04.020(1)(c).
The "Complaint to redress the denial of the basic civil right to marry" in the King County case is at: http://news.findlaw.com/ **
"Judge in Seattle rules same-sex unions legal," CNN.com. 2004-AUG-5, at: http://edition.cnn.com/
The text of the King County lawsuit, Andersen v. Sims, is at: http://news.findlaw.com/. **
Marilyn Elias, "Psychologists to endorse gay marriage," USA TODAY, 2004-JUL-28, at: http://www.usatoday.com/
Lornet Turnbull, "Gays are a protected class, state judge rules." Seattle Times, 2004-SEP-9, at: http://seattletimes.nwsource.com/
Michael Foust , "2nd Wash. state judge strikes down same-sex 'marriage' ban," Baptist Press, 2004-SEP-8, at: http://www.bpnews.net/
"Washington judge rules against gay marriage ban," CNN.com Law Center, 2004-SEP-07, at: http://edition.cnn.com/
Washington Evangelicals for Responsible Government has a web site at: http://www.werg.org/
"Washington State Supreme Court to Hear Oral Arguments on Tuesday, March 8, in Case Seeking Marriage Equality for Same-Sex Couples," Lambda Legal, 2005-MAR-05, at: http://www.lambdalegal.org/
"Judge Rules for Marriage Equality for Same-Sex Couples Statewide," ACLU-WA, 2004-SEP-04, at: http://www.aclu-wa.org/
The text of the Thurston County lawsuit, Castle v. State of Washington is at: http://www.co.thurston.wa.us/ **
"Washington May be the Next to 'OK' Gay Marriage," CitizenLink, Focus on the Family, 2005-DEC-21, at: http://www.family.org/
"New Marriage Poll Doesn't Tell Whole Story," CitizenLink, Focus on the Family, 2006-MAR-24, at: http://www.family.org/
Jason Szep, "Gay marriage battles loom across US," Yahoo! News, 2006-APR-01. at: http://news.yahoo.com/
"Washington Supreme Court Rules Defense of Marriage Act Does Not Violate State Constitution," Court press release, 2006-JUL-26, at: http://www.courts.wa.gov/
"Andersen v. King Co., Nos. 75934-1, 75956-1 (Wash. July 26, 2006)," 2006-JUL-26, at: http://www.courts.wa.gov/
"Spotlight," Legal Marriage Alliance of Washington, at: http://www.lmaw.org/
Andrew Garber, "Domestic partnership bill passes state Senate," The Seattle Times, 2007-MAR-01, at: http://seattletimes.nwsource.com/
Chris McGann, "Gay rights bill for couples passed. Governor plans to sign domestic partnership law," SeattlePI, 2007-APR-10, at: http://seattlepi.nwsource.com/

** These are PDF files. You may require software to read them. Software can be obtained free from:

Copyright � 2004 to 2007 by Ontario Consultants on Religious Tolerance
Originally written: 2004-SEP-12
Latest update: 2007-JUL-22
Author: B.A. Robinson