It has been almost ten years since the Supreme Court made same sex marriage the law of the land with Obergefell v. Hodges. And it was just over 40 years ago that the first same sex couples attempted to obtain marriage licenses. The court cases they filed when they were denied the fundamental right to marry paved the way for marriage equality.
It is important to never forget the struggles same sex couples faced, the grassroots work that went into making same sex marriage the law of the land, and the many challenges that same sex couples encountered as they navigated the road to marriage equality.
The state of Washington played a key role in the story of marriage equality, and it continues to lead the way in protecting the rights of LGBTQ individuals. Yet, despite the passage of Obergefell v. Hodges LGBTQ couples continue to face unique family law concerns especially when it comes to parentage rights and trans rights.
Washington law offers robust protections for LGBTQ individuals. Truce Law is an LGBTQ family law firm in the state of Washington and Seattle that helps LGBTQ couples navigate some of the unique legal challenges that LGBTQ couples encounter as their families grow and change.
In this article we’ll explore the history of same sex marriage in Washington state, and the unique role the state of Washington played in marriage equality.
Grassroots Attempts for Marriage Equality
In 1971, John Singer and Paul Barwick attempted to obtain a marriage license in King County. No same sex couple in King County had ever attempted to get married before. The marriage license application was denied, and when the couple took their claims to the King County Superior Court, their case was rejected.
Singer and Barwick were pioneers among a small group of same sex couples across the country who wanted to formalize their commitment to one another. In 1970, Jack Baker and Michael McConnell became the first same sex couple in the nation to apply for a marriage license. The bravery of these early marriage attempts cannot be understated.
The New York Times reports that at the time, “Homosexuality was still classified as a disorder, sodomy was illegal in nearly every state, and most gay men and lesbians lived in fearful secrecy.” At the time, Washington’s sodomy law made oral and anal sex illegal for same sex couples and heterosexual ones.
In 1971, Washington legislature tried to change the law, noting that it violated a couple’s right to privacy, but the change didn’t go through. It wasn’t until a few years later, that Washington joined other states in finally repealing the state’s sodomy law. The 1970s also saw the passage of other important employment and housing nondiscrimination laws in Seattle.
When Singer and Barwick’s license was denied in Hennepin County in Minneapolis, they fought their case to the United States Supreme Court, where their case was dismissed because the justices didn’t see it as having a “substantial federal question.” This one-sentence dismissal would pave the way for Obergefell v. Hodges. An anonymous piece was published in the Yale Law Journal shortly after the Supreme Court dismissed Baker’s case, where the writer noted that the “claim was far from frivolous.
A credible case can be made for the contention that the denial of marriage licenses to all homosexual couples violates the Equal Protection Clause of the Fourteenth Amendment.” This very reasoning would underpin the Supreme Court case of Obergefell, which would eventually make same sex marriage the law of the land. Yet, for more than four decades, Baker v. Nelson was cited as the reason why federal courts deferred to the states on the question of same sex marriage.
Baker and McConnell refused to be deterred. McConnell changed his name to Pat, and the couple were able to marry in another county using the gender-neutral name. The couple was able to successfully receive a marriage license in 1971 though the license was never recognized as valid. Despite this, the couple claims that theirs was the first valid same sex marriage to have been performed in the United States and is fighting for retroactive recognition in court.
In response to these initial court challenges, some states including Maryland, Virginia, Florida, and California passed laws banning same sex marriage.
The early fight for marriage equality involved so much more than bringing LGBTQ lives out of the closet. Married couples enjoy a range of protections.
Spouses are often the first people consulted about medical decision-making in an emergency or serious illness, and it can sometimes be difficult to visit a sick loved one in the hospital if there aren’t formal family ties established. In the era of the AIDS epidemic, this resulted in great difficulty and even tragedy.
In the 70s and 80s same sex couples often had to resort to legal workarounds to secure the same rights as married couples, with same sex couples often having to fight in court to secure housing and medical decision-making protections that would have been automatically granted to heterosexual married couples.
For example, during the height of the AIDS epidemic, the mayor of San Francisco extended health insurance coverage to same sex domestic partners of public workers, and Berkeley City Council passed a domestic partnership policy to extend insurance benefits to city employees in same sex domestic partnerships. Same sex couples living in other states and cities had to sometimes take other steps to secure these rights. Some couples formally adopted their partners. Others turned to the courts or used advanced directives.
In the 1970s, the state of Washington led the nation in landmark court decisions that protected LGBTQ custody rights. In 1978, the Washington Supreme Court decided that a lesbian couple could maintain custody of their children, making this case “the first successful lesbian mothers’ custody case in the United States,” according to the Washington State LGBTQ Commission. The two mothers, Sandy Shuster and Madeline Isaacson, had initially been awarded custody of their children if they didn’t live together as a couple. The two women moved into apartments across the hall from one another. The fathers found out and contested custody. Ultimately, the court ruled that the mothers’ change in circumstance wasn’t enough to warrant loss of custody. Later, in 1989, Lynn Grotsky and Lisa Brodoff became the first lesbian couple to formally succeed with a second parent adoption in Olympia, Washington.
In the 80s, as some states explicitly moved to define marriage as being between a man and a woman, other municipalities, moved toward equality. In 1985, West Hollywood became the first U.S. City to open domestic partnerships to all citizens, with San Francisco shortly following in 1989. (It wasn’t until 2007 that the state of Washington would give similar rights to same sex couples.) In 1984, the Unitarian Universalist Association began supporting clergy who performed unions for same sex couples.
Victory and Challenges in the 1990s and Early Aughts
The push and pushback for marriage equality grew more contentious in the 1990s and the early aughts, with LGBTQ individuals and their allies openly fighting for marriage equality, while opponents vigorously pushed for discriminatory Constitutional amendments and laws.
In 1993, same sex couples sued the state of Hawai’i for denying them their right to marry. The Hawai’i Supreme Court became the first court in the United States (and the world) to declare that same sex couples had the same fundamental right to marry as heterosexual couples. As the case navigated appeals, the state legislature quickly amended the state Constitution to give the state legislature authority to define marriage as being between one man and one woman. Same sex marriage wouldn’t be legalized in Hawai’i until 2013.
In response to Hawaii’s ruling, opponents of same sex marriage feared that if one state sanctioned same sex marriage, then other states would have to recognize the marriage under the full faith and credit clause of the U.S. Constitution. The Defense of Marriage Act was passed in 1996. It defined marriage under federal law as being between one man and one woman and held that no state should be required to recognize a same sex marriage performed in a state where same sex marriage was legal. When the law was passed, there were many questions about its Constitutionality.
In 1994, Seattle passed the Domestic Partnership Registration Ordinance, which allowed same sex and heterosexual couples to register as domestic partners, but according to the Seattle Times, domestic partnership laws “created a patchwork of different rights and rules across the state.” It would be another ten years before Washington state permitted same sex domestic partnerships on a state level.
In 2004, George W. Bush proposed a Constitutional amendment that would define marriage as being between one man and one woman. The LGBTQ community responded with protest, and in King County, eight same sex couples applied for marriage licenses. When they were denied, they filed a lawsuit. King County Superior Court ruled that Washington state’s Defense of Marriage Act was unconstitutional, and in 2005 the case was brought before the Washington Supreme Court, which upheld Washington’s Defense of Marriage Act.
Yet change and marriage equality was on the horizon. In 2007, Governor Christine Gregoire signed a bill which permitted same sex domestic partnerships in the state of Washington. The domestic partnership law gave same sex couples inheritance rights and the right to visit their partner in the hospital. During the voting process, lawmakers heard moving testimony from a woman who wasn’t permitted to visit her dying partner in the hospital.
In 2008, the domestic partnership law was expanded to grant same sex couples in domestic partnerships 170 more rights previously only granted to heterosexual couples, including the right to share bank accounts, hold common property, and divorce. And in 2009, Gregoire signed an “everything but marriage bill into law,” granting same sex couples all the same state benefits that married couples enjoyed.
Same Sex Marriages
Massachusetts was the first state to legalize same sex marriage in 2004 after a ruling by its state Supreme Court. And by 2012, same sex marriage became legal in Connecticut, Iowa, New Hampshire, New York, Vermont, and the District of Columbia thanks to favorable court rulings. In 2012, the state of Washington joined these states to legalize same sex marriage.
Yet unlike other states which had legalized same sex marriage through the courts, Washington was one the first states in the nation (along with Maine and Maryland) to legalize same sex marriage through the popular vote. On November 6, 2012, Referendum 74 passed. And on December 6, 2012, the first same sex marriage licenses were issued in the state of Washington.
Obergefell v Hodges
While same sex marriage was permitted in the state of Washington, same sex couples faced challenges if they moved or visited other states that had made same sex marriage illegal and didn’t recognize their marriages. The Defense of Marriage Act made it possible for states that forbid same sex marriage to deny same sex couples marital rights and recognition. Patchwork laws across the nation meant same sex couples had to second guess where they lived and where they traveled. For example, if you became ill or were injured while visiting a state where same sex marriage was illegal, your spouse could face difficulties visiting you in the hospital or making medical decisions on your behalf.
Same sex couples who adopted children, could find their adoptions not being formally recognized in states that denied same sex couples the right to adopt. Same sex couples also didn’t enjoy federal protections granted to married couples. For example, military couples weren’t guaranteed spousal benefits.
Yet, the fact that same sex marriage was legally recognized in most states laid the groundwork for the Obergefell v. Hodges ruling. 14 same-sex couples filed suits in their home states (Michigan, Kentucky, Ohio, and Tennessee), where marriage was defined as a “union between one man and one woman.” The couples sued, claiming that state officials in their states were in violation of the Fourteenth Amendment for failing to give the marriages they performed in another state full recognition and by denying them the right to marry in their home states.
With the landmark Supreme Court case of Obergefell v. Hodges in 2015, the Supreme court ruled that the Constitution protected marriage as a fundamental right, extending these protections to same-sex couples.
According to Howard University, by the time Obergefell v. Hodges “was decided, over 70% of the states and the District of Columbia already recognized same sex marriage, and only 13 states had bans.” While progress had been made on a state level, the lack of legal recognition on a national level resulted in same sex couples being denied many legal rights, including denial of federal retirement benefits, property transfer in states that didn’t recognize same sex marriage, parental rights, and more. The decision of Obergefell v. Hodges guaranteed that when same sex couples married, they would enjoy the same legal protections and benefits enjoyed by heterosexual couples regardless of where they lived, where they got married, and where they moved.
With the decision of Obergefell v. Hodges, the Supreme Court found that the states that continued to ban same sex marriage had violated the Fourteenth Amendment of the Constitution, by denying them the right to get married and have the marriages they had had performed in other states recognized. Under the Fourteenth Amendment, no state can create a law which deprives “any person of life, liberty, or property without due process of law.”
After Obergefell, other court cases further enshrined the right of same sex couples to grow their families. While religious organizations are still permitted to deny adoptions to same sex couples on religious grounds, states cannot deny adoptions to same sex couples and adoptions must be recognized across state lines.
Ongoing Challenges
While same sex couples are permitted to adopt and grow their families, simply being listed as a child’s parent on their birth certificate is not sufficient to establish parentage rights across state lines for both same sex couples and heterosexual ones. Only a court order or judgement of parentage offers the security that parentage will be recognized across state lines. For this reason, it is important that same sex couples who adopt, use surrogacy, or IVF to conceive, take the additional step of formally adopting, seeking a parentage order, or making sure that a formal voluntary acknowledgement of parentage is made.
With the recent election and considering the Supreme Court’s overturning of Roe v. Wade, there is understandable concern that the rights that same sex couples fought long and hard for might be lost due to the whims of a politized court. Many experts believe that the Supreme Court is unlikely to overturn Obergefell. Yet, thanks to Washington’s strong protections for LGBTQ couples, same sex couples can take steps to protect their rights regardless of what happens.
Couples can seek court orders to establish parentage. They can ensure that their estate planning offers robust protections for their families. Instruments like advanced health care directives and powers of attorney can protect LGBTQ couples in the unlikely event national laws were to change.
LGBTQ couples can also take steps today to ensure that their formal paperwork and documentation is consistent, especially if there have been name changes due to a gender change. Trans individuals who want to ensure that they receive gender-affirming care in the event of an emergency or illness, might also want to take additional steps with advance medical directives.
Navigating the array of legal protections available can sometimes seem overwhelming. The LGBTQ family lawyers at Truce Law are here to help. We can review your situation to help ensure that your family is protected legally, no matter what happens at the Supreme Court level.
If you have question, the LGBTQ family lawyers at Truce Law have answers. We are here to help.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.