|
|
|
 |  |
 |
 |
WSBA Info | |
|
For Lawyers | |
|
For the Public |  |
 |
For the Media |  |
|
CLE |  |
| | Bench Bar Guidelines | News Releases | Publications | |
|
|
September 2007The WSBA Appropriately May, and Should, Support Marriage-Equality Legislationby Mark A. Johnson and Tereza Simonyan On July 22, 2007, Senate Substitute Bill 5336, Washington’s Domestic Partnership Act (DPA), took effect. The DPA permits heterosexual couples, if one partner is age 62 or older, and same-sex couples, where each partner is age 18 or older, to enter into a State Registered Domestic Partnership (SRDP) if they share a common residence, each is capable of consenting to the relationship, neither is in another marriage or domestic partnership, and they are outside of a specified degree of consanguinity to each other. The DPA grants to the registered parties some, but not all, of the rights available to married couples. Some of these rights are: the right to healthcare facility visitations, the right to give informed consent to healthcare procedures on behalf of a partner incapable of giving consent, and the right to receive information from a healthcare provider regarding a partner’s condition and treatment (Sections 8, 11 and 12); the right to authorize an autopsy of a deceased partner, the right to receive a copy of the autopsy report, the right to control a deceased partner’s remains, and the right to make a donation of a deceased partner’s organs and remains (Sections 21-26); the right to burial together and the right to recognition on a partner’s death certificate (Sections 15-20 and 32); the right to administer a partner’s estate (Section 28); the right to inheritance if a partner dies intestate (Section 27); the right to be a beneficiary of a wrongful death and survival action (Sections 29 and 30); and, the right of state employees only, to receive health insurance benefits (Sections 9 and 10). Section 1 of the DPA, Senate Substitute Bill 5336, sets out the public-policy justifications for the legislation: Many Washingtonians are in intimate, committed, and exclusive relationships with another person to whom they are not legally married. These relationships are important to the individuals involved and their families; they also benefit the public by providing a private source of mutual support for the financial, physical, and emotional health of those individuals and their families. The public has an interest in providing a legal framework for such mutually supportive relationships, whether the partners are of the same or different sexes, and irrespective of their sexual orientation. The legislature finds that same-sex couples, because they cannot marry in this state, do not automatically have the same access that married couples have to certain rights and benefits, such as those associated with hospital visitation, health care decision-making, organ donation decisions, and other issues related to illness, incapacity, and death. Although many of these rights and benefits may be secured by private agreement, doing so often is costly and complex…. The rights granted to state registered domestic partners in this act will further Washington’s interest in promoting family relationships and protecting family members during life crises. This act does not affect marriage or any other ways in which legal rights and responsibilities between two adults may be created, recognized, or given effect in Washington.” S.B. 5336, 60th Leg., Reg. Sess. (Wn. 2007). Among the findings 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, were: • There are an estimated 127,000 individuals who self-identify as gay men or lesbians, and about 16,000 householders identifying themselves as living with a same-sex partner in Washington. Although the DPA recognizes the reality of, and the public interest in, committed relationships between same-sex couples, it does not extend rights to domestic partners comparable in any degree to those granted to parties to a civil marriage. One need only do an electronic legal search of the Washington statutes with a single term — “spouse” — and its derivatives, to gain an immediate appreciation that the rights and responsibilities provided by the DPA do not come close to approximating those granted to couples who may marry. There are more than 400 statutes, statutory subsections, and court rules (not including local court rules) which contain the word “spouse,” or a permutation thereof, which confer, or relate to, hundreds of marriage-dependant rights and responsibilities. For example, the DPA does not extend to domestic partners: • access to family court and the dissolution statutes in the event the relationship ends (RCW Chapter 26.09 — dissolution of marriage); For a complete list of all of the RCWs in which the word “spouse” or a variation is used, see www.wsba.org/media/publications/barnews/johnsonmarriagesep07.pdf. Apart from the vast disparity in benefits available to the parties in an SRDP versus a civil marriage, the sheer number of statutes referencing civil marriage illuminates the difficulties that a parallel-track, gradual approach to same-sex marriage equality will create for clients, lawyers, and the courts. If our Legislature continues to mete out, in degrees, marriage rights for gay men and lesbians, lawyers representing them will need precognition, luck, and a good malpractice insurance carrier to do so adequately and with peace of mind. Why It Is Appropriate for the WSBA to Support Marriage Equality Legislation GR 12(b)(17), adopted by the Supreme Court, authorizes the WSBA to “maintain a legislative presence to inform members of new and proposed laws and to inform public officials about bar positions and concerns.” The WSBA, through its Board of Governors, frequently takes positions in support of, or against, legislation and initiatives. The WSBA has a full-time legislative liaison, and the Board of Governors has a Legislative Committee that meets weekly when the Legislature is in session. The Board of Governors also supports or opposes, when requested, legislation brought to its attention by the WSBA Legislative Committee and any of the WSBA’s 26 sections. The WSBA is a mandatory bar; no one may hold a license to practice law in Washington state without being a member of the WSBA. The constitutionality of mandatory bar associations was upheld in Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826 (1961), and reaffirmed in Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228 (1990). Given that the WSBA is a mandatory bar association that is authorized to, and actively does, participate in the legislative process, it is a certainty that some members will object to the WSBA’s participation in that process. In this regard, the WSBA has two protections in place for its members: the “Keller deduction” and General Rule 12(c)(2). In Keller, supra, a number of California lawyers challenged, on First Amendment free-speech grounds, the State Bar of California’s use of compulsory bar dues to finance what the plaintiffs contended were political and ideological activities. The Keller court acknowledged both the reality that most legislation has social and political implications and the difficulty in determining the demarcation between appropriate and inappropriate bar expenditures: “Precisely where the line falls between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisers to those ultimately charged with the regulation of the legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals, on the other, will not always be easy to discern.” Id., at 15. As examples of the “extreme ends of the spectrum,” the Keller court identified the inappropriate expenditure by a bar association of dues to “endorse or advance a gun control or nuclear weapons freeze initiative,” and the permissible expenditure of “activities connected with disciplining Bar members or proposing the profession’s ethical codes.” Id., at 16. As a result of the Keller decision, the WSBA and other mandatory state bars instituted a procedure known as the “Keller deduction,” whereby the bar identifies the portion of license fees spent on legislative activities and allows members who object to deduct that sum from their annual dues. See, “Keller Compliance Options for the Year 2007: Notice to WSBA Members” (2007), available at www.wsba.org/lawyers/licensing/faq-keller.htm. GR 12(c)(2) provides: “[T]he Washington State Bar Association will not… take a position on political or social issues which do not relate to or affect the practice of law or the administration of justice.” Prior to taking a position on legislation or an initiative, the WSBA Board of Governors discusses and votes on whether WSBA involvement would be compliant with GR 12. The “practice of law” is defined in GR 24(a) as: [T]he application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law. This includes but is not limited to: (1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration. There is scant decisional authority on the meaning of “administration of justice.” In the judicial discipline case In re the Matter of Honorable Fred R. Staples, 105 Wn.2d 905 (1986), the Supreme Court criticized, as too narrow, the Commission on Judicial Conduct’s interpretation of the phrase as set forth in Canon 7 of the Code of Judicial Conduct. The Supreme Court held: “This interpretation would require a very narrow reading of ‘administration of justice’ to include only matters directly relating to the actual administration of the law (i.e., court rules, procedure) and not measures such as this, which would have a significant effect on the way in which justice is administered.” Id., at 561. The Staples court added that if persons with necessary expertise in the matters of improving the law were forced to remain silent, “then beneficial legal reform would be seriously impaired.” Id., at 561. On five separate occasions, the WSBA has supported or opposed legislation or initiatives pertaining to the rights of gay men and lesbians based on a finding by the Board of Governors that the issue was within the purview of GR 12. • At its February 1993 meeting, the Board of Governors unanimously passed a resolution which provided that: “The Washington State Bar Association endorses the prohibition of discrimination against individuals on the basis of their sexual orientation.” See, Board of Governors Meeting Minutes, February 12 and 13, 1993. Civil marriage in Washington is created by statute, controlled by the state, and defined as “a civil contract between a male and a female, who have attained the age of eighteen years, and who are otherwise capable.” See RCW 26.04.010. The state also has created, and controls access to, the process of marriage dissolution. See, RCW Chapter 29.09. The civil contract of marriage, and the rights and responsibilities attendant thereto, is intimately integrated into Washington statutory and decisional authority. It is doubtful that there is any other legal status which factors more frequently into the advice we give our clients. It is doubtful that there is any other single state-controlled contract right on which a greater number of other rights depend. If the Washington State Legislature was considering legislation which would affect the law of dissolution of marriage, community property, evidence, civil procedure, probate, personal injury, contract, workers’ compensation, civil procedure, real estate, torts, and tax, there would not be a rationally debatable question whether such an action relates to the practice of law or to the administration of justice — and there is not with respect to marriage-equality legislation. The only question is: What should be the position? Why the WSBA Should Take a Position in Support of Marriage-Equality Legislation Section 1 of the Domestic Partnership Act is an acknowledgement by the Legislature of the reality of same-sex couples and their families, and the public interest in those families. In addition, Section 1 of the DPA recognizes that while private agreements may be used by same-sex couples to secure some of the rights extended to married couples, doing so is expensive and cumbersome (i.e., increased legal fees), fees which same-sex parents raising children are, according to the published data, less capable of affording. Same-sex couples live together in Washington in committed relationships. They use assistive reproductive technology to conceive children, adopt children, and raise those children together as a family. They pay taxes, buy and sell property together, sue and are sued, and, like heterosexual couples, end their relationships. Each day, WSBA lawyers, some of whom are gay men and lesbians, work as officers of the justice system but are relegated to an undeniably inferior legal status. Every day, WSBA members represent, and bill, gay men and lesbians, and their families who are relegated to the same status. There are literally hundreds of important rights and responsibilities which depend on the ability to enter into the “civil contract” that is marriage, a contract on which the state has a monopoly from inception to dissolution. It is undeniable that the DPA, while simultaneously recognizing the reality of, and public interest in, same-sex relationships, has created a separate, unequal, and truncated menu of benefits for same-sex couples. It is undeniable that, while more rights will be added, a piecemeal, dual-schema approach to marriage equality will necessitate amending hundreds of statutes, a process that will be difficult to execute flawlessly, dangerous for lawyers, cumbersome for the courts required to interpret the results, expensive for the litigants, and will result in a product that is segregative and discriminatory. No one should purport to tell a religious organization who it may marry, but as lawyers we should view the issue of secular marriage equality through the lens of civil, not ecclesiastical, law, and as a legal, not a moral, issue. Washington is a secular democratic state which has monopolistic control over civil marriage and concomitant authority over a myriad of important rights. Lawyers should be leaders in the law, and leadership on this issue requires that we support civil marriage equality. Mark A. Johnson practices plaintiffs’ professional liability and personal-injury law at the law firm of Johnson-Flora, PLLC in Seattle. He served on the WSBA Board of Governors from 2003-2006. He will take office as WSBA president-elect in September 2007 and as WSBA president in September 2008. Tereza Simonyan is a second-year law student at Seattle University School of Law and a law clerk with Johnson-Flora. |
