One delightfully sparkly light in this snowy grey winter legislative session full of difficult budget decisions is the real possibility that we'll pass marriage equality legislation. That's right: we may finally undo our state's Defense of Marriage Act, originally passed in 1998 to prevent the legalization of same-sex marriages.
I've never understood why people want to defend the institution of marriage against people who just want to marry the person they love, make a lifetime commitment, and establish and protect a family that may or may not include children. Maybe the law should have been called the Prevention of Marriage Act. At any rate, we may well do away with this foolish ban in the 2012 legislative session.
I co-sponsored the marriage equality bill, and have fought hard over the years for marriage equality, our state's domestic partnership agreement, the ban on discrimination based on sexual orientation and sexual identity, and related civil rights bills. Truthfully, after the decades-long contentious battle to pass the 2006 legislation outlawing discrimination based on sexual orientation, I thought it may well take a few more decades to institute marriage equality. I’m happy that I may have been mistaken!
We’re on the verge of passing marriage equality legislation in part due to the concerted efforts of thousands upon thousands of people in our state and nation who’ve put a tremendous amount of time, money and other resources into education, litigation, and legislation. Folks have organized major campaigns with state and national groups; they’ve taken it upon themselves to educate their friends, family members, communities and faith communities; LGBT people have lived out and proud lives and shown us the way by their example. Washington has been blessed with an impressive group of openly gay and lesbian legislators who, like many activists, have put themselves at jeopardy by working to implement what their opponents derisively call “the gay agenda:” LGBT folks want the right to marry (or not), to raise children (or not), to live, work, go to school, and play where and how they want, etc. Simply put – to come out of the closet and live free of discrimination. I’m grateful to all of these folks for their hard work. It shouldn’t have to be such hard work to obtain basic rights.
The cause of marriage equality in our state has also been helped along by the fact that other countries (such as our wise northern neighbor Canada) and seven other states have implemented marriage equality. Public attitudes are changing, and I’m proud that Washington seems to be ahead of that curve, not lagging behind. Opponents of marriage equality say this issue is just a distraction from our current revenue crisis. But, as Sen. Ed Murray and Rep. Jamie Pedersen recently reminded us, discrimination is never acceptable and there is never a better time to end it than right now.
Passage of our domestic partnership legislation was in many ways a stepping stone toward marriage equality – an insufficient “separate but equal” temporary arrangement that gave same-sex couples access to some of the benefits of marriage. As of this writing, the Secretary of State's office has registered 9657 couples as domestic partners which have either two members of the same sex or one member age 62 or older. As I’ve mentioned before, it appears that allowing same-sex couples to register as domestic partners hasn't led to the downfall of Western civilization, contrary to the warnings from the far right.
Under the currently proposed marriage equality legislation, Senate Bill 6239 (Sen. Murray) and House Bill 2516 (Rep. Pedersen), registered Washington domestic partners will have two years to convert their partnership to marriage by obtaining a marriage license, or dissolve the partnership. After two years, any domestic partnership that is not in the process of legal dissolution will automatically convert to marriage by operation of law. For computing legal benefits and responsibilities (custody, property, pensions, etc.), the legal date of the partnership is the date the original domestic partnership was registered. Registered domestic partnerships where one person is over the age of 62, regardless of the genders of the parties, will not be converted to marriage and will still be recognized as domestic partnerships. They will still have the option of getting married.
If a couple is from another state or country and have a legally recognized civil union/domestic partnership relationship that is substantially equal to Washington’s domestic partnerships, their relationship will be recognized in Washington. Couples moving to Washington with an out-of-state civil union/domestic partnership have one year after becoming permanent residents to become married. If they don’t marry during that period, then their relationship will not be recognized.
If we’re able to pass marriage equality legislation, gay and lesbian couples married in Washington will only receive the state protections offered to married couples. They will still be denied most of the over 1,130 federal protections currently enjoyed only by heterosexual married couples. We still have some work to do to overturn the federal Defense of Marriage Act (DOMA).
Even with DOMA still in place, Rep. Jamie Pedersen and others tell me that President Barack Obama’s administration has consistently pushed for recognition of same-sex marriages where they can without violating DOMA. For example, as a general matter, federal immigration laws do not recognize the marriages of same-sex couples and immigration rights set forth in federal statutes (such as the right to legal immigration status based on marriage to a US citizen) do not include same-sex couples. However, through the administrative process, the Obama Justice Department has used its discretion in some areas, such as administrative discretion on pursuing deportation, which you can read about here. These small inroads are great, but really, we just need to do away with the federal DOMA. Soon!
Here in our state Senate, Democrats have a 27 to 22 majority, but there are a small handful of Democrats who oppose marriage equality. We seem to have convinced at least two Republicans to support the bill. We still have some work to do to insure passage. Even if the legislature is successful in passing marriage equality, it's very likely that there will be a referendum on it. Making sure the referendum is approved by the voters will take an even greater investment of time, money and other resources from a community of people who have already had to give so much in order to obtain their basic human rights.
Based on the speeches made in the legislature regarding related issues, I'm assuming that opponents of marriage equality will continue to make all kinds of hateful and/or misguided statements during the course of the passage of the law. Statements that we’ve already heard elsewhere such as marriage equality will open the way for rampant bestiality and polygamy; churches and clergy will be forced to perform gay marriages; people who are opposed to homosexuality will have their freedom of speech restricted; children of married same-sex parents are much worse off than those with opposite-sex parents; marriage equality will lead to more straight children and adults being "recruited" by LGBT folks, etc.
I want to address just one of those claims here. Should the bill pass, those individuals and faith communities who oppose marriage equality still have the right to vocally oppose marriage equality. Our state and federal constitutions protect religious freedom and free speech. No church or denomination will be required in any way, shape or form to perform any marriage against its own teachings. (As a civil liberties lawyer, I would be happy to represent any church that were actually forced to do that by any state or federal law.) In addition, the bill specifies that the refusal to perform a marriage does not create a civil cause of action. Such a refusal may not be used as a reason by the government to penalize, withhold benefits from, or refuse to contract with any church or religious denomination. And no religious organization can be required to offer its facilities for any wedding.
Passing the marriage equality legislation won’t put a stop to prejudice or discrimination against LGBT folks. Our nation’s ongoing challenges regarding racism, sexism, classism and many other types of discrimination demonstrate that legislating equal rights and banning certain types of discrimination are only part of the solution. We all have an ongoing individual and collective role to play in ending discrimination in our personal, professional, and civic lives.
Still, I’m looking forward to the fabulous celebration when we institute marriage equality. I know several couples who have their wedding clothes, carefully-crafted vows, honeymoon plans, on-call guests, caterers and officiates prepared for this happy eventuality. I can’t wait to dance at their weddings!