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NOTE: The following is extracted from seminar presentation materials written in April 2013. Since that time there have been changes in the USA and abroad. For example, the US Supreme Court in US v. Windsor has found Defense of Marriage Act (DOMA) to be unconstitutional.

SAME SEX MARRIAGE/PARTNERSHIP

The law on this subject both in the U.S.A and internationally is rapidly changing. It is presently inconsistent and presents considerable uncertainty to any same sex couple moving between countries and even between states in the U.S.A.

I shall first address the recent changes to the law in Washington and then address the international response to same sex marriages.

Washington State

Washington State now includes same sex marriages. As of November 2012 the voters voted to approve the enacted 2012 law enabling same sex couples to marry as of December 6, 2012.

RCW 26.04.010 provides:

1) Marriage is a civil contract between two persons ………

(3) Where necessary to implement the rights and responsibilities of spouses under the law, gender specific terms such as husband and wife used in any statute, rule, or other law must be construed to be gender neutral and applicable to spouses of the same sex.

Prior to enactment of same sex marriage the State provided for Registered Domestic Partnerships under RCW 26.60.

Under the new provisions to RCW 26.60 registered domestic partners may marry under 26.04.010; for those registered domestic partners where both of them are the same sex and both are under 62 years of age their registered domestic partnership automatically becomes a marriage on July 30, 2014, unless proceedings are pending for dissolution, legal separation or annulment on that date. For those registered domestic partners who become married, the date to determine their rights and responsibilities goes back to the date of the registration of the domestic partnership. However the section states that nothing in the section prohibits a different date on the marriage license. See RCW 26.60.100

Note for those couples, where at least one partner is 62, they may still form registered domestic partnerships. RCW 26.60.010. (As the section states, this is preserved to accommodate people of retirement age who may not find it practical to marry due to social security and pension laws. This applies to people of the same and different sexes where one person is 62 or older).

Other States in the U.S.A and the Current (as of writing this material) Federal Approach

Whereas Washington has joined an increasing number of states in the U.S.A which have adopted same sex marriage (see further discussion below), same sex married couples still face unequal treatment on a federal level because of the Federal Defense of Marriage Act (DOMA) which defines marriage as between a man and a woman, and on a state level, in some states, because of their local DOMAs.

Some of the problems which arise out of the inconsistent treatment by states and the federal government are as follows. Washington registered domestic partnerships may not be recognised in some other states. Washington State‘s same sex marriages may also not be recognized in some other states. The federal government does not grant federal rights and responsibilities arising out of marriage to Washington State domestic partnerships, or their same sex marriages. This affects, for example, federal benefits and taxation. This inconsistency between some states and between some states and the federal government makes for considerable uncertainty as to a person’s rights and responsibilities arising out of same-sex unions. The two cases currently before the U.S Supreme Court (see below) will hopefully end this inconsistency and incompatibility.

As of writing there are two cases of interest which the U.S Supreme Court has agreed to hear. The decisions are expected to be out in late June 2013. United States v. Windsor, challenges the DOMA provision which precludes the federal government from recognizing the same sex marriages of couples who are legally married pursuant to state law. Hollingsworth v. Perry challenges California’s Proposition 8 banning same sex marriages which was approved by California voters in 2008. 

The Respect for Marriage Act is presently working its way through Congress. If passed this would repeal DOMA.

9 states and D.C issue marriage licenses to same sex couples: Connecticut; D.C; Iowa; Maine; Maryland; Massachusetts; New Hampshire; New York; Vermont; Washington.

Rhode Island recognizes same sex marriages from other states.

The following 8 states do not issues marriage licenses but offer equivalent spousal state rights: California; Delaware; Hawaii; Illinois; Nevada; New jersey; Oregon; Rhode Island.

The following two states offer some state spousal rights to same sex couples: Colorado; Wisconsin.

Some other states have passed laws or state constitutional amendments banning same sex marriages. In California, before the Proposition 8 referendum lawmakers and the state courts had previously allowed it. The people of California then, by referendum, banned it. They currently have a very confusing situation (prior to a decision from the U.S. Supreme Court expected in June 2013) whereby the CA courts recognize CA same sex marriages that took place between June 16 2008 and November 4 2008. With regard to same sex marriages from other jurisdictions they are treated as domestic partnerships which is a recognized status same sex status in CA.

International same sex marriage legislation:

France and Uruguay: The legislatures have voted to pass laws allowing same sex marriage. They are presently expected to be signed into law.

England has a bill to allow same sex marriages which is currently going through parliament and has passed the House of Commons.

Brazil, Mexico and U.S.A have partial legalizations allowing same sex marriages.

The following countries have legalized same sex marriages:

  • Argentina
  • Belgium
  • Canada
  • Denmark
  • Iceland
  • Netherlands
  • Norway
  • Portugal (However Portugal still does not allow same sex couples to adopt children)
  • South Africa
  • Spain
  • Sweden