Washington State Likely to Legalize Same-Sex Marriage

The Washington State Senate has just passed a bill that would legalize same-sex marriage in that state. The state’s governor has already stated that she plans to sign it.

If this bill becomes law, Washington will be the seventh jurisdiction in the U.S. to recognize same–sex marriage. The others are currently Massachusetts, Vermont, Connecticut, New Hampshire, Iowa, New York, and Washington, D.C. In addition, the state legislatures of New Jersey and Maryland are currently considering bills that would legalize same-sex marriage, both of which are thought to have a pretty good chance of passing.

Anyway, after passing the State Senate, the bill must go to the State House of Representatives, which is expected to easily pass the bill. But once this happens, and the governor signs it, it still has a long road ahead before actually becoming law.

As in every state that has a voter initiative process, and has also legalized same-sex marriage, opponents of the law are pledging to gather signatures to put the issue on the ballot, and present it to voters for a final decision. Opponents of same-sex marriage have until June to gather enough signatures to get a referendum onto the November ballot. Apparently, the law will go into effect, at the very earliest, in June, if and when the supporters fail to get enough signatures for the referendum.

If they do get enough signatures, the law will be on hold until the November election, and the issue is decided by Washington voters once and for all. Many opponents of same-sex marriage are optimistic that the law will be rejected by Washington voters. They accurately point out that every state that has voted on same-sex marriage has rejected it. Early polls, however, suggest that Washington is well-situated to be the state that breaks that streak. According to the latest poll, 55% of Washington voters would vote in favor of same-sex marriage.

I’ve said time and again that I strongly support marriage equality, and I’m heartened to see that, over the last year or so, momentum has strongly shifted in favor of nationwide legalization of same-sex marriage. Of course, it will be at least years (and more likely decades) before same-sex marriage is legal nationwide. However, with the repeal of Don’t Ask, Don’t Tell taking full effect (and completely without incident), and at least one nationwide poll suggesting that a slim majority of Americans support same-sex marriage, I’m confident that full marriage equality will come to the United States in my lifetime.

In the meantime, however, marriage equality will progress on a state-by-state basis. However, if Washington voters approve marriage equality (being the first voters in the U.S. to do so), it will probably be remembered as a watershed moment, and embolden supporters of marriage equality in other states to attempt to bypass courts and state legislatures, putting the question of same-sex marriage directly to the people, and perhaps finding a more receptive audience than ever before.

However, whenever you’re discussing same-sex marriage in the United States, there’s constantly an elephant in the room: the federal Defense of Marriage Act (DOMA).

DOMA is a federal law that was passed in 1996, and remains in effect today. It prohibits the federal government from giving any legal recognition to same-sex marriages, even if they were performed by states that recognize such unions. While this law is currently being challenged in court, the process is going to take a while, and the outcome is uncertain. Furthermore, given the political climate in D.C., it’s highly unlikely to be repealed any time soon.

As long as DOMA is in effect, same-sex couples, even if they’re legally married in a state, cannot receive any of the benefits that the federal government offers to individuals simply by virtue of being legally married.

These include several financial benefits, including the right to jointly file federal income tax returns, spousal benefits for federal employees (including healthcare, life insurance, etc.), and survivors’ benefits for the spouses of military service members killed in action. All of these federal benefits are, by law, completely unavailable to same-sex married couples.

DOMA is currently being challenged in court. Most federal court challenges to this law stop short of arguing that there is a constitutional right to same-sex marriage. Instead, they argue that the federal government has traditionally deferred to the individual states on matters of family law, including the recognition of marriage. So, the federal government should have to defer to the states on same-sex marriage, as well. If successful, the federal government would have to recognize same-sex marriages legally performed in a state. But such a ruling would not compel every state in the country to perform same-sex marriage. This path probably has a better chance in the Supreme Court that an argument that there’s a nationwide constitutional right to same-sex marriage.

In any case, it looks as if Washington is going to be yet another stepping stone on the road to full marriage equality. However, the legal situation remains extremely complicated, and raises some interesting constitutional questions dealing with federalism and equal protection. You can count on continuing coverage of these issues right here as new developments come.