September 2007

Equal Marriage in My Lifetime? Whoa!

by Eric C. de los Santos

Marriage Equality. It could happen. Now, say it with me just like Joey Lawrence would. “Whoa.”

Up until a few years ago, the notion that two men could legally marry was something my partner, Chad, and I thought would never happen, at least not in our lifetime. The prospect of this becoming a reality is still too difficult to comprehend, especially in light of the fact that I have spent the past 20 years knowing that, should I be blessed to find someone to share this life with, our relationship would never be viewed as equal to a marriage between a man and a woman. I am overwhelmed thinking of the possibilities of participating in an institution so full of traditions and rituals that are exclusively the domain of heterosexual couples.

The issue of marriage equality is likely to come before the WSBA Board of Governors in the form of a resolution requesting the Board’s support as the bill is introduced in Olympia. The Board is no stranger to the broader issue of discrimination, as it adopted a formal resolution in 2005 to support legislation adding “sexual orientation” to RCW 49.60, Washington’s Law Against Discrimination (WLAD). However, this particular situation feels different, in part, because the result, should the bill pass, is much more palpable and far-reaching.

Undoubtedly, the Board’s first consideration will be whether to even take a position on the marriage-equality bill. For those who view this strictly as a measure to end ongoing discrimination, the Board’s directive is clear: Yes, it is a matter for proper deliberation; and yes, the Board should vote to support marriage equality, simply because it is the right thing to do. For those who believe that marriage equality reaches far beyond the issue of discrimination and into issues of religious or moral beliefs, a discussion must follow regarding the Bar Association’s duty to its membership, the public, and the profession as a whole.

The debate as to whether the WSBA should weigh in on the marriage-equality bill should be as passionate, compelling, and equally interesting as the discussion surrounding the ultimate deliberation. The structure that will govern the initial discussion is GR 12.

According to GR 12(c), the WSBA will not take positions on political or social issues which do not relate to or affect the practice of law or the administration of justice. Does marriage equality affect the practice of law? From a historical perspective, this is not a typical “practice of law” issue. In the past, “practice of law” has been construed to be limited to issues regarding bar admissions, the bar exam, and disciplinary measures. However, I would venture to guess that one would be hard-pressed to find a self-identified lesbian, gay, transgender, and/or bisexual attorney who would deny that their ability to practice law would be unaffected by passage of the marriage-equality bill.

I, for one, can attest to the fact that my experiences in law school, taking the bar examination, and my early years practicing law would have been very different had I not been plagued with issues concerning my sexual orientation. Many moments in both my personal and professional life have been devoted to worrying, second-guessing, and questioning the effect my sexual orientation would have on my relationships with fellow students, colleagues, co-workers, clients, and jurors. I refer to this pining as my battle with the little voices of self-doubt. I continue to be beleaguered with these little voices, as my work as a corporate attorney involves multi-state interactions with individuals from places where the concept of equal rights for gay individuals is not a subject for contemplation. The amendment to WLAD and, more recently, the passage of the domestic-partnership bill have helped to silence the little voices; the passage of the marriage-equality bill in Washington state would go further to quell them.

From an organizational perspective, the Board must be mindful of the impact that taking a position on the bill would have on the relationships we have so carefully fostered in the House and Senate. The credibility of the WSBA in Olympia would be at stake. It is one thing to convince our membership that this is a matter of significant legal import; it’s quite another to persuade legislators that this is a matter requiring input from the legal community. Additional consideration must be given to the existence of other groups, legal in nature, that may be more deft and adept in the championing the cause. What more can the Bar add to the debate?

I have no read on how the Board will decide these issues. I do know, however, that the ensuing debate will be spirited, healthy, and above all, civil. These qualities are the hallmark of our profession. The decision will be a difficult one, and I don’t know what the outcome will be. But I am excited about the debate. Whoa.

Eric C. de los Santos is a WSBA governor-at-large. He is corporate counsel at Labor Ready, Inc. He lives in Columbia City in Seattle with his partner, Chad. He can be contacted via e-mail at edelossantos@laborready.com.