September 2013 Bar Bulletin
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September 2013 Bar Bulletin

Marriage Equality - The Elusive Goal

By Jill Mullins


Same-sex couples in Washington have seen an incredible sea change in the respect afforded their relationships on the state and federal levels. In February 2012, the LGBT community celebrated Valentine's Day a day early when Gov. Chris Gregoire signed marriage equality on the state level into law. After opponents filed a referendum, an incredible grassroots movement encouraged many allies to join the LGBT community to organize a massive effort of phone calls, doorbelling and, most importantly, having conversations with friends, family, co-workers and even strangers about why marriage equality matters.

This awareness campaign helped secure the votes needed to make Washington one of the first states to secure marriage equality through popular vote. On December 6, the first marriage licenses were granted. On December 9, there was an amazing celebration in Seattle and couples who have been together for decades were finally able to get married.

After Washington achieved marriage equality, the wait began for the U.S. Supreme Court marriage decisions. The much-anticipated decisions on the Defense of Marriage Act and California's Prop. 8 came out on the morning of June 26, 10 years to the day after the Supreme Court had ruled that it was unconstitutional to make same-sex intercourse a criminal act.

The Court's decision in United States v. Windsor1 struck down Section 3 of DOMA as unconstitutional, effectively holding that the federal government will recognize all state marriages, including same-sex unions. The Prop. 8 case2 was decided on grounds that the law's proponents lacked standing to pursue the matter. The decision instructing the Ninth Circuit to dismiss the appeal means the decision of U.S. District Judge Vaughn R. Walker will stand.3 Judge Walker held that excluding same-sex couples from marriage was not rationally related to a legitimate state interest and thus Prop. 8 violated the Equal Protection Clause of the Fourteenth Amendment.

The Court's decision in Windsor, authored by Justice Anthony M. Kennedy, represented a long-awaited victory for so many same-sex couples. Another wave of marriages occurred as people who had been waiting for true marriage equality on the state and federal levels joined the ranks of couples in legally recognized relationships. While the decision is a major step forward, the reality is that Windsor is a limited decision and same-sex couples are still far from equal.

Windsor will not be remembered for its eloquence nor its unequivocal support for the right of same-sex couples to marry, there being a striking contrast between Judge Walker's passionate decision and the blandness of Justice Kennedy's authorship. In fact, Windsor seems to ignore an elephant in the room, an elephant important for Washington attorneys: the existence of "equal to but less than" institutions that are often the gateway to marriage, i.e., domestic partnerships and civil unions.

While Windsor prohibits the federal government from discriminating against legal marriages, it does not apply to state registered domestic partnerships or civil unions. But even that is not as clear-cut as it sounds, for the other glaring omission in the opinion is a discussion of the fact that people and families travel throughout the U.S., and that same-sex couples may travel to get married or live in a state that recognizes their marriage and later move to a state that does not.4

Domestic Partnerships and Civil Unions

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