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September 2007The Role of the State in Washington Marriage: Same Sex, Different Rightsby Jill Mullins and Hugh Spitzer There are three partners to every civil marriage: two willing spouses and an approving State.”1 One of the interesting aspects of the marriage-equality issue is the light it sheds on the large role the state plays in granting certain rights and burdens to married couples. The states, including Washington, have passed hundreds of laws regarding the details of family life — presumably with the purpose of ensuring family stability and clarity of law. In an effort to identify the statutes at issue in Washington, a number of people have analyzed the breadth and content of statutes that grant rights or impose obligations dependent upon marital status — one study, by K&L Gates lawyer (and Washington State Representative) Jamie Pedersen, identified 423 marriage rights and obligations under Washington law.2 The recent domestic-partnership bill3 extended a few of these rights to domestic partners, primarily rights associated with death and dying. That legislation is discussed in Jason Holloway’s article on page 23. This article explores the remaining rights and obligations encompassed in the status of marriage in Washington state. When one reviews the list of marriage rights not currently available to same-sex couples, trends emerge as to the type of statutes that relate to marital status. The general areas affected by marital status include: licenses; family support obligations, including maintenance, child support, and community property laws; adoption; child custody; criminal law, including defining what is considered criminal behavior (i.e., marriage as a defense to rape); creditor rights; public assistance; and property. In addition to the laws that affect all married couples, almost 100 of the statutes regulate the status of marriage for government employees. Family Law The state establishes who can marry, with every state passing laws governing the age, mental capacity, level of consanguinity (i.e., which relatives one cannot marry), and which sex combinations can marry (e.g., only opposite-sex couples). However, the state’s involvement does not end at “I do.” The state is involved in structuring the family and in the dissolving of family life. There are also several statutes that assist with the process of dissolution.4 These statutes allow, inter alia, the use of a mediator, a court to order one party to pay attorneys’ fees to the other party, and govern the overall procedure for finality of dissolution decree. Although same-sex relationships likely have the same issues as opposite-sex couples in the dissolution process, the only provision in the new legislation is SSB 5336’s Section 6,5 which provides that dissolution of a domestic partnership requires only a filing with the state, or marriage to a member of the opposite sex. This leaves uncharted custody and child-support issues, property distribution, and many other issues. Parenting There are also statutes meant to provide stability for families with children. For example, one important statute is the “presumed father statute,”6 which assumes that the husband of a woman giving birth is the father of the child. There is also a law that addresses the parental status of a child conceived via assisted reproduction, providing a general presumption that the father may not challenge paternity except under limited circumstances.7 The Vermont Civil Unions Act extends this presumption of parenthood to the partner (male or female) of the woman giving birth. This presumption eliminates the need for co-parent adoption for lesbian parents who employ alternative means to get pregnant. Washington statutory law also provides that stepparents, a status that can be achieved only by a legal marriage, have obligations of support of their stepchildren. Under RCW 26.16.205, the expenses of the family and the education of the children, including stepchildren, are chargeable upon the property of both husband and wife, or either of them, and they may be sued jointly or separately. It is questionable whether this obligation would extend to same-sex partners, as the Washington State Supreme Court distinguished the obligation of a stepparent from that of the partner in a meretricious relationship.8 In Smith, the Court held that it was reasonable that someone who entered into a marital relationship with a person with children has agreed to enter into the serious commitment and can therefore be assumed that his or her earnings will be available to meet the needs of the children.9 The Court held that the presumption would not necessarily be justified in a meretricious relationship.10 If domestic partnership is equated more with a meretricious relationship than with marriage, the same-sex partner of a parent may have no obligation to ensure the necessities and educational needs of the child are met. If a domestic partnership is considered to be closer to marriage and a “serious commitment,” a court may find that the domestic partner assumed that his or her earnings would be available to meet the needs of the children. This also touches on the role the law plays in providing guidance in the event of a dissolution of spouses with children. Chapters 9 and 19 of Title 26 RCW contain most of the provisions in Washington statutes for creating a parenting plan and determining custody, visitation, and support upon dissolution of marriage with children. These statutory structures are not in place for same-sex households, and this can make dissolution and custody issues somewhat more complicated. One example of the potential complications is evidenced by the case of Carvin v. Britain.11 The Carvin case involved a lesbian couple who had a child together, inseminated by a male friend. When the child was six years old, the couple split up and a custody battle ensued. Then Britain, the biological mother, married the sperm donor and asserted that Carvin had no standing to claim custody or visitation because she was not the biological or adoptive mother. The Court disagreed, applying a “de facto parent” approach and outlining criteria for determining who has standing as a de facto parent. The Court adopted the four criteria earlier outlined by the Wisconsin Supreme Court: (1) the natural or legal parent consented to and fostered the parent-like relationship; (2) the petitioner and the child lived together in the same household; (3) the petitioner assumed obligations of parenthood without expectation of financial compensation; and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. The Supreme Court also clarified that the de facto parent is “limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.” Id. at 701. The Carvin court noted that the Legislature has been “conspicuously silent” about families like the Carvin/Britain family. The adoption statute does not specifically state that second/co-parent adoptions12 may or may not be undertaken. To the extent the law allows a same-sex couple to do a co-parent adoption, it likely will cost them more than opposite-sex married couples, because the status of marriage has a statutorily defined fee waiver, which provides that the couple is charged, not each individual in the couple. Property Property is another area where the status of marriage has a large effect within the couple and with respect to their parties. Many statutes governing property provide structure for property distribution at death or dissolution. For example, statutes allow for the transfer of a license or franchise to the surviving partner at death. This is true for liquor licenses, commercial fishing licenses, and other rights connected with fishing. This is also true for insurance, including receipt of benefits or requirement for conversion policies to be offered to spouse. One of the most important concepts addressing the property distribution at divorce or death is Washington’s community-property system.13 As a preliminary matter, it is important to note that the community-property system applies only to a valid marriage, which is limited to opposite-sex couples. Community property allows for each spouse to have an undivided one-half interest in all property acquired during the course of a marriage, except property obtained by gift, devise, or inheritance. Separate property remains separate and, generally speaking, all income, rents, and profits from separate property remain separate. However, in a dissolution, the distribution of property must be just and equitable, and a court can consider separate property in its determination of the allocation of property. The community-property system also limits one spouse’s ability to convey or encumber the homestead without the consent of the other spouse. Washington common law has extended some of the protections of the community-property system to putative and meretricious spouses. In Connell v. Francisco, the Washington State Supreme Court held that in order to make an equitable distribution of property of unmarried cohabitants, the court must first find that the relationship qualifies as a “meretricious relationship.”14 In a meretricious or putative spouse relationship, only property that would be considered community property had the couple been legally married is on the table for distribution. It is unclear whether or not the meretricious-relationship doctrine will be extended to same-sex couples. The closest case on point is Vasquez v. Hawthorne.15 Vasquez’s partner, Schwerzler, died, and Vasquez filed a claim against the estate asserting that he and Schwerzler had formed an economic community and that Vasquez was therefore entitled to an equitable share of the property. The trial court had granted the Vasquez estate’s motion for partial summary judgment under the meretricious-relationship doctrine. The Court of Appeals reversed. The Washington State Supreme Court overturned the appellate court, holding that the meretricious-relationship doctrine is an equitable one, and “[e]quitable claims are not dependent on the ‘legality’ of the relationship between the parties, nor are they limited by the gender or sexual orientation of the parties.”16 Community-property experts caution against reading too much into Vasquez, as the Court stopped short of holding that property they acquired qualified for equitable division under the Connell case.17 Creditors Another area where the law has provided guidance is with regard to a spouse’s interaction with a third-party creditor. Washington statutes make it clear that neither spouse is liable for the prenuptial or separate debts of the other. Under Washington state law, one spouse’s property is exempt from execution, attachment, or garnishment from a judgment against another spouse.18 Since same-sex couples cannot become married, there is no legal relationship between them that would allow creditors to assume that they have access to the property and assets of the entire community. Spouses are allowed a higher exemption from garnishment if supporting a partner.19 Spouses are allowed to transfer money freely between each other without worrying about certain tax consequences.20 The separate versus community-property distinction in relation to creditors could be problematic in an instance where one partner takes a larger role in supporting the community. If one partner is sued for committing what would be considered a separate property tort, and a judgment is entered against him or her, under the community-property system, the damages would be collectable first from the tortfeasor-spouse separate property (including wages). If that is not enough, then damages can be collected from the tortfeasor’s one-half interest in community personal property. If that still does not cover the debt, then a tortfeasor is entitled to the tortfeasor’s one-half interest in the community’s real property.21 Given that these are governed by statutes that discuss the status of marriage, it is unclear what kind of expectations a partner may be exposed to based on the domestic partnership. It is possible that if none of the property is in the tortfeasor’s name, the victim of the tort will have a limited ability to recover damages. Alternatively, if all of the property is in the tortfeasor’s name, the domestic partner of the tortfeasor could lose all the property that would otherwise be protected. Conflict of Interest Certain statutes attempt to guard against a conflict of interest that may arise due to marital status. Individuals campaigning for public office must disclose contributions made to spouses.22 Employers of lobbyists must report gifts to spouses of public officials.23 Witnesses to healthcare powers may not be related by blood or marriage.24 There are also several statutes which exclude spouses from being “public members” on the boards.25 In addition, spouses of public officials are prohibited from sitting on state commissions determining salaries of spouse, or from engaging in some contracts.26 Criminal Law In criminal law, marital status not only affects the rights and responsibilities of spouses, but it also provides a defense against certain crimes. Some of the benefits include: the ability to notice of the release of sex offenders or violent offender,27 or having community property be exempt from seizure of property.28 The other area where the marital status comes into play is in the definition of crimes and the defenses allowed. For example, Rendering Criminal Assistance 1 is ordinarily a class-C felony, but when committed by a relative it is only a gross misdemeanor.29 Marriage is also considered a defense to Rape 2 and 3; Child Rape 1, 2, and 3; Child Molestation 1, 2, and 3; and Sexual Misconduct with a Minor 1 and 2.30 Because these defenses are linked to the status of marriage, these defenses do not exist for same-sex couples. In fact, current domestic-partnership law requires that both parties be at least 18, with no exceptions.31 Whether the status of marriage should be considered a defense for all of these crimes may be debatable, but it is clear that this is another area where the domestic-partnership status is not equal to the marriage status. Public Employees Almost a fourth of the benefits/responsibilities identified in the RCW project are statutorily defined benefits for public employees, specifically judges, firefighters, school employees, and police officers.32 Pensions of public employees,33 police officers,34 firefighters,35 teachers,36 and judges37 are governed by statute. For example, a police officer’s spouse is entitled to his or her spouse’s pension on death in line of duty.38 Based on the statutorily defined benefits and responsibilities as tied to marital status, it appears that if one is the partner of a public employee, he or she has fewer rights to benefits and pensions than many of those in the private sector whose employers voluntarily accord these benefits to same-sex partners. Full Faith and Credit It is also important to note that in addition to the distinctions within Washington state’s laws between domestic partnership and marriage, much is beyond the scope of any single state. A couple in Washington who register as domestic partners cannot expect that any other state will honor their status under the full faith and credit clause of the Constitution. The federal “Defense of Marriage Act,”39 which has not reached the Supreme Court, grants the federal government an extraordinary power to intervene in what is otherwise considered a state institution. There is a serious question as to whether the Article IV, Section 1’s “Full Faith and Credit” clause allows Congress to grant states the power to ignore contracts lawfully entered into in other jurisdictions. There are hundreds of other privileges and entitlements encompassed in federal statutes that are guided by the marital status. Regardless of the federal context, there are, within Washington, a broad range of legal rights and obligations that appear beyond the reach of samesex couples unless and until the Legislature amends the remaining 400-plus laws that provide benefits or obligations based on marital status in order to clarify that these benefits and obligations extend to domestic partners. Jill Mullins is a 2008 J.D. candidate at the University of Washington School of Law. Hugh Spitzer is an affiliate professor of law at the University of Washington and practices with Foster Pepper PLLC in Seattle. NOTES 1. Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 321 (2003).
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