By David S. Law and
Hema Sarangapani

The last year has been an historic one for same-sex couples. Government officials in San Francisco, Portland, New Jersey, New York, and New Mexico all took the courageous step of issuing marriage licenses without regard to the applicants’ gender, thus allowing many committed gay and lesbian couples to finally obtain legal recognition of their relationships. Courts have since ordered all of these jurisdictions to cease issuing the licenses.

As of May 17, 2004, Massachu-setts is the only state to allow marriage equality. Internationally, the Nether-lands, Belgium, and three provinces in Canada also grant marriage licenses to same-sex couples.

Washington State
Washington now stands at the threshold of joining the jurisdictions committed to offering the security, stability and protection of civil marriage to all, regardless of gender or sexual orientation. In February 2004, the Northwest Women’s Law Center and Lambda Legal Defense and Education brought suit against King County on behalf of eight same-sex couples denied marriage licenses. The complaint in Anderson v. Sims asserts that denying marriage to same-sex couples violates the guarantees of equality, liberty and privacy found in the state constitution. Summary judgment briefing is now in progress, with argument expected in July 2004.

As litigation moves forward in King County and many of the other jurisdictions named above, gay and lesbian families continue to be confronted with a maze of legal uncertainties. This uncertainty impacts families in the areas of medical care, health insurance, property ownership, inheritance, and parental rights.

Medical Care
In the medical care context, gay and lesbian couples do not enjoy the same automatic right--as “next of kin”--to make medical decisions on behalf of an incapacitated partner, and in some cases may not even be allowed to accompany partners into treatment rooms. Unlike married couples, they must secure a durable power of attorney and health care proxy to ensure protection in these situations. Unable to marry, a same-sex partner without power of attorney or a health care proxy may find that he or she is forced to stand by while a distant or even hostile relative, recognized as legal “next of kin,” makes medical decisions.

Insurance
Same-sex couples and their children are at much greater risk of being denied access to health insurance through their employers. Most employer-sponsored health plans extend coverage to the married spouses and children of their employees, but not to the employees’ unmarried partners. If a working gay or lesbian parent has been unable to establish a legal relationship to his or her child through adoption, that child is also likely to be ineligible for coverage.

What’s more, domestic partner benefits are not offered by the vast majority of employers in the state (the City of Seattle being a notable exception). The Institute of Medicine of the National Academies has found that “even one uninsured person in a family can put the financial stability and health of the whole family at risk.”1 Further, the impact of high rates of uninsured individuals affects the overall well-being of a community. Offering gay and lesbian couples the option of civil marriage would allow spouses and children of gay and lesbian individuals to have equal access to critical benefits such as employer-sponsored health insurance.

Property
For purposes of property ownership and division, the right to share equitably in all jointly acquired property and debt in the event of a breakup is not a given. Washington common law does allow for the equitable distribution of property in relationships deemed to be “marriage-like;” however, securing such a determination in the event of a dispute requires the filing of a civil lawsuit outside the ordinarily more streamlined dissolution of marriage process.

Similarly, a gay or lesbian individual does not presumptively have the right to inherit property from his or her life partner in the absence of a will without first establishing to the court’s satisfaction that the relationship was sufficiently “marriage-like.”

Children
For the many gay and lesbian couples who choose to bring children into their lives, legal uncertainties regarding parental rights and obligations can arise. According to the 2000 Census, one out of three female couples and one out of five male couples are raising children in the United States. More specifically, Census 2000 shows that:

• 45.6 percent of married heterosexual partners are raising children.
• 43.1 percent of unmarried heterosexual partners are raising children.
• 34.3 percent of female partners are raising children.
• 22.3 percent of male partners are raising children.

While gay and lesbian couples in Washington can acquire the same parental rights through adoption as married heterosexual couples, those who do not adopt--for lack of financial means, lack of information, or a (sometimes false) sense that there is no need to do so --face considerable risks and uncertainties, particularly in the event of the breakup of the relationship or death of one partner.

Although the recent Court of Appeals decision in Parentage of L.B. recognized the doctrine of de facto parenthood and allowed a non-biological, non-adoptive mother to continue seeking legal protection of her relationship with her daughter, the financial and emotional burden of turning to the courts to protect the mere existence of one’s parental rights is tremendous.

Further, a parent who has not secured parental rights to his or her child through adoption will not presumptively retain custody of the child in the event of the death of the child’s other (legal) parent, and may face a contest against the deceased parent’s relatives, who may not support the continued contact. In the event of the death of the parent who has not secured parental rights, the child will not be eligible to receive Social Security death benefits through that parent.

The emotional and financial strain of each of these situations could be avoided by extending the right to marry to gay and lesbian couples in Washington, thus allowing them the same presumptive legal standing with respect to their children as married heterosexual couples.

Out from the shadows
While Anderson v. Sims makes its way to the Washington Supreme Court, thousands of gay and lesbian families in Washington remain hopeful that they may soon be able to publicly declare their commitment to one other and benefit from the State’s recognition and protection of that commitment as civil marriage. These families hope to be finally free from the legal uncertainty that shadows numerous aspects of their lives.