November 2008

WSBA Board of Governors Endorses Same-Sex Marriage Legislation

The Resolution and Some Background

by WSBA President Mark Johnson

At its meeting in Seattle on September 19, 2008, the Washington State Bar Association Board of Governors, by a vote of 12–0, passed the following resolution:

Whereas, as officers of the court and stewards of our system of justice, lawyers are charged with protecting and promoting the rights of our clients within the framework of the law;

Whereas, promoting and protecting the right of persons to have access to and rely upon the legal rights and obligations of civil marriage serves the administration of justice and the practice of law; and

Whereas, predictability and fairness in the laws that protect property rights, parental rights and access to the justice system are necessary if lawyers are to fulfill their duties to their clients and serve the interests of justice;

Whereas, achievement of those goals requires that all persons be treated equally regardless of sexual orientation or gender identity;

NOW THEREFORE, the Board of Governors of the Washington State Bar Association resolves to support equal access for same-sex couples to civil marriage and its attendant legal rights and obligations.

The Board’s resolution reflects its belief that secular marriage is an important civil right over which the state has exclusive control, its conviction that a significant minority of our citizens are being arbitrarily denied access to that right, and its recognition that the denial of the right to marry concomitantly denies access to an enormous number of property rights and other legal rights.

The decision also reflects the Board’s determination that the domestic partnership acts enacted by the 2007 and 2008 Washington State Legislatures (SSB 5336 and HB 3104, effective on July 22, 2007, and June 12, 2008, respectively), which do not extend to same-sex couples benefits equal to those granted to married heterosexuals, are segregative and discriminatory.

Finally, the resolution reflects the Board’s recognition of the need to eliminate the cumbersome obstacles Washington’s lawyers now face when representing same-sex couples in adoptions, assisted reproductive births, real estate purchases and sales, litigation, estate planning and probate, and other legal matters. Navigating two newly enacted pieces of domestic-partnership legislation, coupled with the inability to rely with confidence on the precedential value of the mountains of decisional authority pertaining to civil marriage, increases the cost of representing same-sex couples, diminishes the certainty with which those clients can be advised, and raises the risk of litigation — both between the clients, and against their lawyer.

The resolution is the culmination of years of support by WSBA boards for the rights of gay men and lesbians. In February 1993, the Board passed a resolution endorsing the prohibition of discrimination against individuals based upon their sexual orientation. In March 1993, the Board passed a motion supporting then-pending legislation which would have prohibited discrimination in housing and employment based upon marital status and sexual orientation. In June 1994, the Board passed a resolution opposing Initiatives 608 and 610. In 1997, the Board endorsed Initiative 677, which was intended to prohibit discrimination in employment based upon sexual orientation. Finally, in July 2005, the Board unanimously passed a resolution supporting the addition of sexual orientation to Washington’s Law Against Discrimination.

Pursuant to GR 12, the WSBA may take a position on an issue if it is found to “relate to or affect the practice of law or the administration of justice.” See GR 12(c)(2). There will undoubtedly be WSBA members who will be distressed at the passage of this resolution, contending that the issue is social and/or political and, therefore, not a matter for the WSBA to address. GR 12 does not, however, require that an issue be devoid of social or political controversy or impact or require that the Board weigh the social and political impact against the finding that the issue relates or affects the practice of law or the administration of justice. It is not realistic to expect that legislation affecting an institution as fundamental as marriage will not have social or political ramifications, nor is it persuasive to argue that the civil marriage statute, affecting as it does hundreds of rights and, literally, every conceivable area of law, does not relate to or affect the practice of law or the administration of justice.

According to statistics published in Same-Sex Couples Raising Children in Washington State — Data from Census 2000, published in January 2005 by the Williams Project on Sexual Orientation Law and Public Policy at the UCLA School of Law, same-sex couples in Washington state are currently raising more than 7,400 children. It is, therefore, an undeniable reality that same-sex couples in Washington state spend their lives together, raise their families together, and contribute greatly to our state’s welfare, businesses, and economy; yet they and their children are faced daily with confronting the psychological impact and social stigmatization resulting from domestic and familial segregation.

I am extremely gratified that the Washington State Bar Association has endorsed same-sex civil marriage and I am proud of Immediate Past President Stan Bastian’s leadership on the issue and the Board of Governors’ decision to support equal rights and stability and certainty in the law for all.

Why I Voted in Favor of the Resolution

by WSBA President-Elect Salvador A. Mungia

The following are remarks I made before casting my vote in favor of the same-sex marriage resolution.

I could easily support this resolution on the basis that this is a practice of law issue — because it is. Our members who counsel same-sex couples to safeguard their rights are navigating a minefield of hazards and uncertainties. There are no clear answers to the issues same-sex couples face trying to obtain the protections that are afforded married heterosexual couples. I do not find that the rights afforded to married heterosexual couples can be obtained by same-sex couples through legal agreements. Moreover, even attempting to do so imposes a substantial financial burden on same-sex couples that heterosexual couples do not bear.

However, the practice of law basis is not determinative for me. Instead, I believe that we, as lawyers, have the duty to ensure that the law treats all people equally — that no group be treated differently only because it is currently disfavored. Our Association’s Rules of Professional Conduct remind us that we are guardians of the law — that justice is based upon the rule of law grounded in respect for the dignity of the individual. Unfortunately, our Association has not always fulfilled our roles as guardians. In 1942, when President Roosevelt issued Executive Order 9066, more than 100,000 U.S. citizens of Japanese descent were sent to internment camps. Looking back now, no one will dispute that Executive Order 9066 was a horrible injustice. Yet we, as a legal profession, were mute. We had a duty to speak in defense of the rule of law. We failed. We were poor guardians.

I recognize that there are some who say that this is a divisive political/moral issue. Whether same-sex marriage is moral or immoral is not for our Association to answer. What our Association is duty-bound to answer is the call to defend the rule of law and the fundamental value of equality. While our Association never faced the following issue, it could have. In my lifetime many states had laws criminalizing a white person marrying a non-white person, as challenged in Loving v. Virginia. These so-called racial purity laws were based on what the majority believed morality required. We need to ask ourselves if our Association was faced with this issue in the 1960s, would we have stayed mute or would we have fulfilled our roles of guardians of the law and spoke out against this injustice?

There are some who say that the WSBA should not speak for them on this issue, as it goes against their personal views of what is moral. Once again, that same argument could be used in the Loving situation. Moreover, by adopting this resolution, our Association is not making a statement as to what our members believe is moral or immoral, but instead is upholding its duty of protecting the rule of law and equality. Our Association, through the RPCs, prohibits our members from discriminating against others based upon sexual orientation. Finally, our Association does not require that 100 percent of our members agree before our Association can take a position. If that were the standard, then even a single member would effectively hold a veto.

People are saying that now is the time for the WSBA to take a position. I disagree. We are late. We are guardians of the law: we should be in the vanguard, not rear-guard, of battles to defend the law, to defend justice.

I urge my fellow governors to vote in favor of this resolution. I urge my fellow attorneys to stand behind it.