BILL REQ. #:  S-1002.1 

Read first time 01/28/09.   Referred to Committee on Judiciary.

     AN ACT Relating to civil marriage equality, recognizing the right of all citizens of Washington state, including couples of the same gender, to obtain civil marriage licenses; amending RCW 26.04.010 and 26.04.020; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) Civil marriage is a legal institution recognized by the state in order to promote stable relationships and to protect individuals who are in those relationships. Civil marriage is based on a civil contract between two persons and does not require the sanction or involvement of religious institutions. Civil marriage provides important protections for the families of those who are married, including not only children and other dependents they may have, but also members of their extended families. The legislature and the people of the state of Washington find that strong, healthy families promote social stability and economic growth, and that these families are supported and protected by the contractual obligations and benefits conferred by civil marriage licenses. On these bases, the state therefore has a compelling state interest in ending discrimination against otherwise qualified applicants for a civil marriage license, including discrimination on the basis of gender or sexual orientation of the applicants.
     (2) The legislature finds and declares as follows:
     (a) Despite longstanding social and economic discrimination, many gay and lesbian Washingtonians have formed lasting, committed, caring, and mutually supportive relationships with persons of their same gender. These couples live together, participate in their communities together, and many raise children and care for family members together, just as do heterosexual couples who have the option to marry under Washington law.
     (b) The state of Washington has a proud tradition of respect for the principle that no human being should be denied his or her full rights and responsibilities under the law.
     (c) According to the 2000 census, Washington state is home to at least sixteen thousand same gender couples, ranking ninth among the fifty states in the number of same gender couples. Seattle ranks second among large cities in the United States in the percentage of couples who are of the same gender. Same gender couples live in all thirty-nine counties in Washington, and nearly one in four of these couples is raising children. While some of these couples may have domestic partner registries in their jurisdictions, such arrangements do not offer the same scope and depth of rights, responsibilities, privileges, and protections offered by civil marriages, nor do they provide any legal standing outside the jurisdiction in which they occur.
     (d) Marriage laws support the core values of commitment and responsibility. Washington's discriminatory exclusion of same gender couples from marriage harms those couples and their families by denying those couples and their families specific and equal rights and responsibilities under state and federal law. At least four hundred twenty-three Washington state statutes conferred either rights, benefits, or obligations depending upon marital status, nearly all of which are currently unavailable to Washington's 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 not to testify against a spouse, the right to certain employment and pension benefits as well as other specific benefits, and the right to transfer property between spouses without paying the real estate excise tax. The federal benefits withheld include the right to file joint federal income tax returns, the right to sponsor a partner for immigration to the United States, the right to social security survivor benefits, the right to family and medical leave, and many other substantial benefits and obligations.
     (e) Washington's discriminatory exclusion of same gender couples from marriage further harms same gender couples and their families by denying them the unique public recognition and affirmation that civil marriage confers on other couples, and the opportunity to express their mutual dedication through the uniquely recognized rituals of marriage.
     (f) The legislature has an interest in encouraging and supporting loving, stable, committed, caregiving relationships regardless of the gender or sexual orientation of the partners. The benefits that accrue to the general community and to the state's economy when couples undertake the mutual obligations of marriage accrue regardless of the gender or sexual orientation of the partners.
     (g) The highest courts in four states have held that denying the legal rights and obligations of marriage to same gender couples is constitutionally suspect or impermissible under their respective state Constitutions. These states are Hawaii, Vermont, Massachusetts, and New Jersey. In 2005, both houses of the California legislature approved a bill, "The Religious Freedom and Civil Marriage Protection Act," which would have ensured that the right to marry in California applied to all of its citizens. In so doing, the California legislature determined that ending the exclusion of lesbian and gay couples from marriage is necessary to fulfill the state constitution's guarantees of due process, privacy, equality, and free expression. While challenges to the discriminatory exclusion from marriage continue around the United States, countries such as Canada, the Netherlands, Belgium, Spain, and South Africa have ended the denial of marriage to same sex couples and provide full marriage equality to all of their citizens.
     (h) No official of any religious denomination or nonprofit institution authorized to solemnize marriages shall be required to solemnize any marriage in violation of his or her right to free exercise of religion guaranteed by the First Amendment to the United States Constitution or by the Washington state Constitution.
     (i) It is the intent of this act to end discrimination in marriage based on gender and sexual orientation in Washington, to ensure that all persons in this state may enjoy the freedom to marry on equal terms, while also respecting the religious freedom rights of clergy and religious institutions to determine for whom to perform marriage ceremonies and which marriages to recognize for religious purposes.

Sec. 2   RCW 26.04.010 and 1998 c 1 s 3 are each amended to read as follows:
     (1) Marriage is a civil contract between ((a male and a female)) two persons who have each attained the age of eighteen years, and who are otherwise capable.
     (2) Every marriage entered into in which either ((the husband or the wife)) person has not attained the age of seventeen years is void except where this section has been waived by a superior court judge of the county in which one of the parties resides on a showing of necessity.
     (3) Where necessary to implement the rights and responsibilities of spouses under the law, gender specific terms such as husband and wife shall be construed to be gender neutral, except with respect to chapter 26.26 RCW.

Sec. 3   RCW 26.04.020 and 1998 c 1 s 4 are each amended to read as follows:
     (1) Marriages in the following cases are prohibited:
     (a) When either party thereto has a ((wife or husband)) spouse living at the time of such marriage; or
     (b) When the ((husband and wife)) spouses are nearer of kin to each other than second cousins, whether of the whole or half blood computing by the rules of the civil law((; or
     (c) When the parties are persons other than a male and a female)).
     (2) It is unlawful for ((any man)) a person to marry his ((father's sister, mother's sister, daughter, sister, son's daughter, daughter's daughter, brother's daughter or sister's daughter; it is unlawful for any woman to marry her father's brother, mother's brother, son, brother, son's son, daughter's son, brother's son or sister's son)) or her sibling, child, grandchild, aunt, uncle, niece, or nephew.
     (3) A marriage between two persons that is recognized as valid in another jurisdiction is valid in this state only if the marriage is not prohibited or made unlawful under subsection (1)(a)((, (1)(c),)) or (2) of this section.