September 2007

Marriage and the Law

by WSBA Executive Director Paula Littlewood and WSBA President-elect Stan Bastian

This edition of Bar News is dedicated to a single subject — marriage and the law — an issue that will no doubt highlight some differing views among the membership of our association. The Washington State Legislature is expected to consider this issue during its next session, and there are strong and passionate advocates on both sides of the issue.

Our intent in publishing the essays in this edition is not to advocate one side over the other. Rather, our intent is to educate, debate, inform, advise, and stimulate your thoughts on this important issue. Indeed, providing a forum to discuss important and developing issues is one of the most valuable services the Washington State Bar Association can offer to its members. We may not be able to reach consensus on such a complex issue, but as lawyers we should be involved in the development of sound public policy.

Marriage-equality legislation was first introduced during the 2007 legislative session in both the Senate and the House, but the sponsors did not request a hearing on either bill. Instead, they focused on legislation creating a domestic-partnership registry, available to same-sex couples and other couples where at least one partner is 62 years of age or older. This legislation provides certain rights regarding healthcare and probate decisions to registered domestic partners. The proposed Marriage Equality Act addresses issues beyond these discrete rights and would make it legally possible for same-sex couples to marry in the state of Washington and thereby receive the same legal protections granted to other married couples.

Currently, there are over 400 state statutes that confer rights, benefits, or obligations based upon marital status, nearly all of which are currently unavailable to same-sex couples. These include the right to bring a wrongful-death action, the right to inherit property when there is no will, the right to invoke the evidentiary privilege, the right to certain employment and pension benefits, and the right to transfer property between spouses without paying the real estate excise tax. The intent of the Marriage Equality Act is to extend these rights and benefits to same-sex couples.

General Rule 12 governs the operation of the Bar Association. It regulates what the Bar can and cannot do with regard to engaging in political or social issues, and the Bar’s leadership and staff members always work hard to stay within the appropriate boundaries. GR 12 states that the WSBA can take a position on such matters so long as they relate to or affect the practice of law or the administration of justice. Unfortunately, it is not always easy to determine whether a proposed action is authorized or prevented by the rule. The issue of marriage and the law presents one such example.

The WSBA has traditionally avoided taking positions on purely political or social issues, even if GR 12 would allow for it. This restraint is because as a mandatory, or unified, bar association, the WSBA serves a diverse population with wide-ranging viewpoints. Around the country, unified bars tend to avoid issues when the membership has deeply held and widely divergent opinions. In fact, the majority of unified state bar associations (there are 33 in total) have decided not to take positions on marriage-equality legislation because they believe it to be too political and too divisive.

However, many believe that the WSBA should support the Marriage Equality Act and that such a position is authorized by GR 12. They argue that the proposed legislation directly relates to and affects the administration of justice because it promotes both an accessible and effective legal system as well as diversity and equality in the courts. All of these principles are important and core values to this bar association and the legal profession as a whole.

As you read through the articles in this month’s issue, we hope you will find the analysis and viewpoints presented to be both thought-provoking and illuminating on a topic very much in the forefront of society’s dialogue today. So, read on! And we look forward to hearing your thoughts on this important topic as well. 

Paula Littlewood is the WSBA executive director and can be reached at paulal@wsba.org. Stan Bastian is a former public defender for the City of Renton and prosecutor for the City of Seattle, and is a shareholder in the Wenatchee and Moses Lake firm of Jeffers, Danielson, Sonn & Aylward, P.S. His practice focuses on civil litigation, employment law, labor negotiations, and insurance defense. He was elected to the office of WSBA governor for District 4 in 2004. He presently serves as WSBA president-elect, and will assume the office of WSBA president in October.