KCBA Stance on Same-Sex Marriage Reflects Historic Role Shaping Social Policy
By Gary Maehara
When the issue of same-sex marriage was first presented to the KCBA Board of Trustees in July of 2005, the response was, predictably, mixed. Some trustees expressed strong support, while others expressed support with reservations. Still others expressed reluctance for a variety of reasons as to why KCBA needed to develop for adoption a policy statement on this hotly-debated social topic.
It was decided that a special committee of officers and trustees would be appointed to discuss and debate the issue and to submit a recommendation to the Board. Extensive reading of the briefs prepared by the special committee was followed by strong debate of the issue by the Board, resulting in a proposed policy statement that was formally approved by the Board unanimously at its November 16 meeting. The policy reads:
Two people of the same sex should have the right to marry under state law and to undertake the legal responsibilities and enjoy the legal protection associated with civil marriage under the law.
Because of the nature of the topic, the Board chose to give our KCBA membership an opportunity to comment prior to the Board's final vote on the proposed statement. An additional two weeks was therefore allowed to give members an opportunity to voice their opinions. The response was phenomenal: we received 334 responses via email from our members! Compare this with the last time we sought member comments on a policy statement in 2004 when we received a mere 17 responses to our Drug Policy Statement.
Opinions and comments to the proposed statement covered a wide range of opinions and beliefs. Of the 334 responses, 72% were clearly in support, 12% clearly opposed, 10% felt KCBA should not take a position on social policy and 3% took issue with the process. Following is a representative sampling from the responses we received:
"I agree 100% with this resolution, and believe it should be adopted as official policy."
"I am personally opposed to same-sex marriage and disagree that it involves discrimination of any kind."
"I fully support the KCBA's stance on marriage equality. We, as attorneys, have taken an oath to help others and to fight for people's rights. This includes the right to help others who deserve equal treatment, regardless of sex, sexual orientation, religion, ethnicity, race, etc."
". . . every member of the board of directors who approved the garbage below stinks to high heaven. Each is obviously totally lacking in morals."
"I am proud to be a member of an organization that states its position on this issue so plainly."
"I would support a position endorsing recognition of civil unions, or some legal equivalent that phrases this in terms of equal rights, but believe that marriage is properly reserved for a man and a woman."
"Marriage is an institution that both in society and under the law has long been recognized as the union of one man and one woman."
"Regardless of one's own personal or religious views regarding this issue, an application of equal protection to our laws regarding marriage should lead one to the conclusion that marriage should be available for gay and lesbian couples."
"Marriage is a sacred institution, not a contractual matter for our legal system to try and re-make in the name of upholding equal rights and equal justice."
"By securing a legally recognized family unit, we are ultimately benefiting the children and giving the parents their appropriate legal rights."
The History of Our Association
Perhaps it would be illuminating to provide some historical background that has led the Board to its decision on the subject of a same-sex policy statement. The KCBA was formed in part to sanction members of the bar who had acted with the vigilante mob to expel the Chinese from Seattle during the anti-Chinese riots of 1886. In 1938, the Seattle Bar Association passed a resolution creating a legal-aid bureau to be funded by the bar and other non-government organizations.
In the early 1950s, some citizens believed that attorneys who represented people before state and federal legislative committees investigating communism, particularly those who recommended exercise of Fifth Amendment rights, should be disciplined or disbarred. In 1954, KCBA adopted a resolution recognizing the right and duty of lawyers to represent clients in unpopular causes. In 1965, KCBA established legal service centers that have evolved into today's legal service organizations such as Northwest Justice Project and Columbia Legal Services.
In 1978, when the City of Seattle ordinance prohibiting discrimination on the basis of sexual orientation in employment and housing had come under challenge, KCBA advocated for retention of the city ordinance. In 1992, KCBA supported the amendment to the state court rules prohibiting discrimination on the basis of sexual orientation. Most recently, in January 2005, our association issued a resolution recommending that the state legislature establish a special commission to review our current approach in dealing with drug abuse and addiction.
KCBA has a rich history speaking out on social issues for which all members should be proud, no matter how unpopular these issues may have seemed at the time.
The Process
Throughout this entire process, the Board's discussion has focused on the legal issue now before our state Supreme Court. The ultimate legal question before the Court is whether the Washington State Constitution permits the Legislature to prohibit same-sex marriage. The policy question asks whether two people of the same sex should be permitted to marry and enjoy the same benefits of marriage that heterosexual couples now enjoy.
Additionally, the Board has always been mindful that religious communities may have different views on this issue. For this reason, the proposed statement references "civil marriage," not the "religious rite of holy matrimony."
As we have discovered, same-sex couples are denied hundreds of legal rights, protections and benefits available only to married heterosexual couples. Allowing committed, same-sex couples all of the rights, privileges and responsibilities of civil marriage is a necessary step toward ending discrimination based on sexual orientation.
The Supreme Court justices, like the trial court judges, did not select the issues in this case; the legal issues have been thrust upon the Court for its determination. Abdication of the responsibility to rule on the issues is simply not an option. Some of our members believe that this issue should be resolved in the courts and that KCBA should decline involvement and stay out of matters involving public policy. As our history has evidenced, no matter how sensitive or unpopular the issue, it did not deter our predecessors and it should not deter us now.
A Historical Comparison
Last year, we commemorated the 50th anniversary of the U.S. Supreme Court's ruling in Brown v. Board of Education. That particular case arose out of the conditions in Topeka, Kansas in the early 1950s when racial segregation in the public schools was the norm across the United States. Black and white schools in any given district were supposed to be equal, but in actuality most black schools were far inferior to their white counterparts. A black third-grader named Linda Brown had to walk one mile through a railroad yard to get to her elementary school, even though a white elementary school was only seven blocks away from her home. Her father tried to enroll her in the white school, but the principal denied his request.
At that time in the United States, Plessy v. Ferguson was the law of the land and allowed for "separate but equal" school systems for blacks and whites. Because of the precedent of Plessy, the District Court felt compelled to rule in favor of the Board of Education. The case was appealed to the U.S. Supreme Court on October 1, 1951, where it was combined with others challenging school segregation in South Carolina, Virginia and Delaware. On May 17, 1954, Chief Justice Earl Warren read the decision of the unanimous Court.
The Supreme Court's decision in Brown v. Board of Education did not abolish all aspects of segregation nor did it require desegregation of public schools by a specific time. Complete desegregation of schools did not occur overnight. The process was incredibly unpopular in many areas of our country and was often met with violent resistance. However, with the institution of "separate but equal" officially declared unconstitutional, the permissive and mandatory school segregation that existed in 21 states was finally dismantled. This was an important milestone in the effort to bring equal justice under the law to all American citizens, regardless of race.
Despite vehement opposition to Brown at the time, who today would disagree with the Court's ruling that segregated schools were - and are - inherently unequal and that the doctrine of "separate but equal" mythical? Perhaps some day we, too, will look back on the issue of same-sex marriage and agree that equal justice applies to each of us without regard to sexual orientation.
Gary Maehara is the current president of the King County Bar Association. He can be reached at garmae@safeco.com.
