24 January 2012

Washington State To Enact Bill Authorizing Gay Marriage

Public proclaimations of support for a gay marriage bill by a sufficient number of relevant state legislators and the state's Governor makes passage of a bill authorizing same sex marriage in Washington State into law a near certainty.

Washington would then become the seventh state to legalize same-sex marriage along with New York, Massachusetts, New Hampshire, Iowa, Connecticut and Vermont. The District of Columbia also recognizes same-sex marriage.

The decision on gay marriage is notable for being legislative, rather than the product of a citizen initiative or court ruling.

The situation seems to be evolving into one where there is will be a block of states in the Northeast and on the Pacific Coast where gay marriage is recognized, while other large blocks of states where it is not recognized. If I recall correctly, in Maine, which is one of the last holdouts not recognizing gay marriage in a block of Northeastern states together with Rhode Island, the state legislature passed a gay marriage bill, but a citizen referendum repealed the bill by a fairly narrow margin.

Overall the state by state situation on legal recognition for same sex couples is quite complicated.

The California Situation

A pending appeal in the United States Court of Appeals for the 9th Circuit will determine the fate of gay marriage in California. A citizen's initiative there, Proposition 8, prohibited gay marriage, which was briefly the status quo in California and a federal trial court held that Proposition 8 was unconstitutional. The State of California did not appeal, but the Proposition' sponsors purported to appeal the ruling and the 9th Circuit, deferring to the opinion of the California Supreme Court on a certified question, determiend that they did indeed have standing to bring that appeal, so the case is now being briefed on the merits in that federal appellate court.

The 9th Circuit is likely to uphold the trial court ruling finding Proposition 8 to be unconstitutional, given the judges on the panel and their initial analysis of the standing issue in the case. The U.S. Supreme Court would have been unlikely to consider an appeal of a ruling that the supporters of the bill lacked standing to appeal. But, the U.S. Supreme Court is quite likely to consider on appeal on the merits from the 9th Circuit, if it does affirm the trial court ruling, and is quite likely to reverse its ruling, which would close the door to a federal constitutional right to same sex marriage entirely.

However, there is still a real possibility that California could join Washington State in having legalized same sex marriage as a result of this litigation.

California's community property laws have also provided a back door way to secure de facto recognition of same sex couples for federal tax purposes.

The Colorado Situation

A number of other states recognize civil unions that afford the same state law rights as marriage, but without the formal marriage status and description.

Colorado's legislature is considering a bill to do that this session (the state constitution prohibits a gay marriage bill in the state without a state constitutional amendment), and Governor Hickenlooper supports that bill. Pat Steadman, my state senator, who is an openly gay man, is the prime sponsor of the legislation. Colorado had taken a number of steps short of a full civil unions bill in support of gay rights already, firming up the political coalition to pass a civil unions bill, and a number of prominent Republicans have expressed support for a civil unions bill even though many Republicans disfavor taking the final symbolic (and possibly significant for federal law purposes) step of describing civil unions as marriages, so the bill has a chance of clearing Colorado's state house which has a one vote Republican majority, as well as its Democratic party controlled state senate.

Calling It Marriage Matters

The symbolic element of the distinction between marriage and civil unions may be more than symbolic, now that the Obama administration has decided to cease defending the provision of the Defense of Marriage Act (DOMA) that provided that same sex couples validly recognized as married under state law will not be recognized as married for purposes of federal law. (The other part of DOMA, which permits one state to refuse to give full faith and credit to another state's same sex marriage has more constitutional vitality at this point.)

Without federal DOMA, same sex couples that are married are entitled to a wide array of federal legal benefits available only to married couples, but couples with civil unions are argument not entitled to the same benefits, although choice of law issues are acute, because it is possible for the same couple to have both a civil union (or simply a relationship unrecognized by law) under the law of the state where they reside, and to be married legally under the laws of another state. It is unclear how federal officials in the absence of the federal law portion of DOMA are to interpret this situation, although the more logical view would be to assume that a marriage valid under the laws of any state is valid for federal law purposes, even if it is not valid under the state where the couple current resides.


Cry, Beloved Country said...

The Washington State bill pretends to protect religious freedom but sections 4 and 7 quietly and completely take it away, and leave pastors, imams, rabbis, churches, mosques and synagogues open to action by the State Human Rights Commission, the Attorney General’s office (through the ALJ system) and the court system.

They will be faced with the option of marrying people they don’t in good conscience believe their God allows them to marry, or being bankrupted.

And once we let the government infringe the religious freedom of one group over one issue, it will be hard to keep them out of everyone else's spiritual practice as well.

Here’s an analysis of the language of the bill as it pertains to religious freedom:

Andrew Oh-Willeke said...

I read your post. Your objection to Section 4 of the bill is baseless. In the context used, there is both no legal duty to marry anyone, and the only alternative to "civil" liability when used in that way is criminal liability, which no law purports to create and to which a First Amendment defense would be sufficient to secure a swift and certain dismissal in any case.

Section 7 of the bill, which bans discrimination in commercial transactions that happen to be carried out by religious institutions is probably designed to prevent a business from calling itself a church simply to escape the law's requirements. But, one could imagine that being overenforced as applied. The hardest cases would involve religiously run medical facilities.

However, Section 7 is probably subject to constitutional challenge in an appropriate case, could be construed narrowly to preserve its constitutionality, and even if found to be unconstitutional is probably severable from the rest of the legislation.