I am honored to have been invited to to provide
comments regarding S.B. 5398, S.B. 5400, and H.B. 1130.
By way of introduction, I am a professor of law. I teach at Brigham Young
University School of Law. I also have taught at Howard University School
of Law in Washington, D.C., at Sophia University Faculty of Law in Japan,
and at the University of Aberdeen in Scotland. Family Law is my primary
area of scholarship. I teach courses in Family Law, Children and the Law,
Conflicts of Law, and Origins of the Constitution. I have written or co-authored
several books and several dozen law review articles or chapters in books
about family law. Two of my most recent publications (published this year)
are law review articles examining constitutional arguments for same-sex
marriage, Lynn D. Wardle, A Critical Analysis of Constitutional Claims
for Same-Sex Marriage, 1996 B.Y.U.L.Rev. 1-101, and the rules and practices
regarding international recognition of marriages, Lynn D. Wardle, International
Marriage and Divorce Regulation and Recognition: A Survey, Family Law Quarterly,
vol. 29, pp. 497-517 (Fall 1995). S.B. 5398, S.B. 5400, and H.B. 1130 happen
to touch on all of those fields. Additionally, I am active in both national
and international scholarly and law reform organizations. Presently I am
the Secretary-General of the International Society of Family Law, an international
learned society of 500 scholars and judges from 49 different nations devoted
to the study of family law, and I am an active member of the American Law
Institute consultative group that is working on a #Family Law Project.#
I have written about same-sex marriage, have testified before the U.S.
Senate Judiciary Committee and a subcommittee of the U.S. House of Representatives
in support of the Defense of Marriage Act last summer, which passed both
houses of Congress by overwhelming margins and was signed by President
Clinton. Thus, I have been asked to give my professional comment and analysis
regarding H.B. 117. Of course, the opinions I express are my own professional
views; I do not speak for any of the institutions or organizations with
which I am associated.
It appears to me that S.B. 5400 is the same in text as S.B. 5398, except
S.B. 5400 would require submission of the proposed law to the vote of the
people, whereas S.B. 5398 is ordinary legislation which only requires passage
by the legislature and signature of the governor to become effective. H.R.
1130 also is the same in text as S.B. 5398, except it would take effect
immediately. Since the text of all bills is the same as S.B. 5398, I will
focus my remarks on S.B. 5398, but my comments regarding the text apply
equally to S.B. 5400 and H.B. 1130 as well.
First, what these bills propose to do is reasonable and appropriate. The
regulation of marriage is one of the first duties (Aristotle said it was
the first duty) of legislatures. These bills are designed to clarify that
same-sex marriages, and some other kinds of marriages, will not be recognized
in Washington, even if they happen to be permitted in some other state
or country.
The major concern is with same-sex marriage. Because of the recent decisions
of the Hawaii Supreme Court in the Baehr v. Lewin case, and just two months
ago the decision of the Hawaii Circuit Court in Baehr v. Miike, it is no
longer an academic or speculative possibility that some jurisdiction may
legalize same-sex marriage.
Same-sex marriage is not permiited in the State of Washington -- or any
other state or nation in the world at this time. More than twenty years
ago, in Singer v. Hara, the legal policy of Washington was made clear that
same-sex marriage is not permitted in Washington. But some advocates of
same-sex marriage are attempting to slip same-sex marriage through the
back door. If any jursidction legalizes same-sex marriage, same-sex couples
from Washingtonn will go to that place, get married, return to Washington,
and demand that Washington recognize their same-sex marriages.
For many decades the established rule in American law regarding recognition
of marriages contracted out of the jurisdiction has been to apply the law
of the state of celebration to determine whether a marriage was valid (lex
loci celebrationis), subject to the exception that if the out-of-state
marriage violates a strong public policy of the forum, courts of that state
will refuse to recognize the validity of the marriage (particularly if
it was a state of domicile of the parties at the time of marriage). See
generally Robert A. Leflar, American Conflicts Law # 221 (4th ed. 1986);
Vol. 1, Lynn D. Wardle, Christopher A. Blakesley, & Jacqueline Y. Parker,
Contemporary Family Laws #2.03 (1988); Russell J. Weintraub, Commentary
on the Conflict of Laws 230-233 (3d ed. 1986); William M. Richman &
William L. Reynolds, Understanding Conflict of Laws 362-363 (2d ed. 1993).
The Restatement (Second) of Conflict of Laws #283(2) (1971) states the
general rule as follows:
A marriage which satisfies the requirements of the state where the marriage
was contracted will everywhere be recognized as valid unless it violates
the strong public policy of another state which had the most significant
relationship to the spouses and the marriage at the time of the marriage.
While the Restatement's proposed "most significant relationship"
standard is not accepted by all states, the the general rule of marriage
validation and the general public policy exception noted by the Restatement
are.
The question is whether same-sex marriage violates strong public policy
in Washington. The answer is affirmative, strongly affirmative. Marriage
is a unique institution that should not be diluted by extension to other,
alternative relations that do not contribute to society what heterosexual
marriage contributes. Washington has long recognized the unparallelled
contributions that the institution of heterosexual marriage has made to
society and continues to make to society that benefit all persons, but
particularly for the benefit of the vulnerable, the sick, the young, the
old, the unpopular, and the needy.
But it would be best not to leave this to chance or question of court litigation.
The question is too important to leave ambiguous or uncertain.
In 1993 the Hawaii Supreme Court ruled that Hawaii's marriage license law
allowing only heterosexual couples but not homosexual couples to obtain
a marriage license constitutes sex discrimination under the state constitution
(equal protection provision and the Equal Rights Amendment). Baehr v. Lewin,
74 Haw. 530, 852 P.2d 44 (1993). The Hawaii Supreme Court held that the
heterosexual-marriage-only law could be upheld only if the state proved
that it is necessary to effectuate a compelling state interest. In the
remanded case, the Hawaii Circuit Court ruled on December 3, 1996, that
the state must legalize same-sex marriage. The ruling has been stayed pending
appeal to the Hawaii Supreme Court, but it is possible that by the end
of the year, same-sex marriages could be performed in Hawaii. If that is
the ruling, it is likely that immediately many same-sex couples would fly
to Hawaii to be united in "marriage."
Thus, by the end of this year, Washington courts could be faced with cases
in which homosexual couples with valid Hawaiian same-sex marriages demand
that the Washington courts recognize their "marriage." They would
argue that while Washington State itself does not permit same-sex marriage,
it should recognize such marriages performed in other states, a a matter
of full faith and credit.
Surely it is prudent for the legislature to resolve this questions before
a flood of litigation hits the Washington courts. This is not the kind
of issue that is well-dealt-with by retrospective legislation.
It is crucial to protect the right of Washington lawmakers to resolve this
important policy question for themselves. Advocates of same-sex marriage
have openly avowed their intention to use marriage recognition and full-faith
and credit principles to force same-sex marriage upon Washington. In law
review articles, and widely circulated policy papers, leading advocates
of same-sex marriage and influential law professors and legal advocacy
groups have explicitly disclosed that their strategy is to obtain judicial
legalization of same-sex marriage in Hawaii (or some other state) and then
to force all other states to recognize those same-sex marriages under choice
of law and Full Faith and Credit principles. In the absence of this legislation,
Washington may be vulnerable to those efforts.
The Washiington legislature is not alone in recognizing and responding
to this threat. Congress and at least sixteen states in the past two years
have enacted laws barring recognition of same-sex marriage. Defense of
Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (Sep. 21, 1996) (defining
marriage for purpose of federal law as exclusively heterosexual, thus barring
federal court or agency recognition of same-sex marriage in federal law);
1996 Alaska Sess. Laws 21 (#A marriage entered into by persons of the same
sex, either under common law or under statute, that is recognized by another
state or foreign jurisdiction is void in this state, and contractual rightsgranted
by virtue of the marriage, including its termination, are unenforceable
in this state.#); Ariz. Rev. Stat. # 25-101 (1996)(#Marriage between persons
of the same sex is void and prohibited.#); 1995 Delaware House Bill 503
(Approved by Governor June 21, 1996) (#A marriage obtained or recognized
outside the State of Delaware between persons prohibited by subsection
(a) of this Section shall not constitute a legal or valid marriage within
the State of Delaware.#); GA. Code Ann. #19-3-3.1 (1996) (#No marriage
between persons of the same sex shall be recognized as entitled to the
benefits of marriage. Any marriage entered into by persons of the same
sex pursuant to a marriage license issued by another state or foreign jurisdiction
or otherwise shall be void in this state.#); Hawaii Rev. Stats. #572-1
(1994) ("the marriage contract . . . shall be only between a man and
a woman"); Idaho Code #32-209 (1996)(#All marriages contracted without
this state, which would be valid by the laws of the state or country in
which the same were contracted, are valid in this state, unless they violate
the public policy of this state. Marriages that violate the public policy
of this state include, but are not limited to, same-sex marriages . . .#);
1996 Ill. Laws 459 (#The following marriages are prohibited: . . . (5)
a marriage between 2 individuals of the same sex. . . a marriage between
2 individuals of the same sex is contrary to the public policy of this
state.#); 1995 Kansas S.B. 515 (Approved by Governor April 10, 1996) (#The
marriage contract is to be considered in law as a civil contract between
two parties who are of opposite sex all other marriages are declared to
be contrary to the public policy of this state and are void.#); 1995 Michigan
House Bill 5662 (Approved by Governor June 25, 1996)(#This state recognizes
marriage as inherently a unique relationship between a man and a woman,
as prescribed by section 1 of chapter 83 of the Revised Statutes of 1846,
being section 551.1 of the Michigan Compiled Laws, and therefore a marriage
that is not between a man and a woman is invalid in this state regardless
of whether the marriage is contracted according to the laws of another
jurisdiction.#)& 1995 Michigan Senate Bill 937 (Approved by Governor
June 25, 1996)(#Marriage is inherently a unique relationship between a
man and a woman. As a matter of public policy, this state has a special
interest in encouraging, supporting, and protecting that unique relationship
in order to promote, among other goals, the stability and welfare of society
and its children. A marriage contracted between individuals of the same
sex is invalid in this state.#); Missouri S.B. 768 (enacted May 1996)(#It
is the public policy of this state to recognize marriage only between a
man and a woman. Any purported marriage not between a man and a woman is
invalid.#); 1995 N.C. Sess. Laws 588 (#Marriages contracted or performed
outside of North Carolina between individuals of the same gender are not
valid in North Carolina.#); 1995 Oklahoma S.B. 73 (Approved by Governor
April 29, 1996)(#A marriage between persons of the same gender performed
in another state shall not be recognized as valid and binding in this state
as of the date of the marriage.#); Pennsylvania S.B. 434 (Signed by Governor
Oct. 16, 1996)(#It is hereby declared to be the strong and longstanding
public policy of this commonwealth that marriage shall be between one man
and one woman. A marriage between persons of the same sex, which was entered
into in another state or foreign jurisdiction, even if valid where entered
into, shall be void in this Commonwealth.#); South Carolina H.B. 4502 (same
sex marriage against public policy of state); South Dakota Cod. Laws Ann.
# 25-1-1 (1996) (#Marriage is a personal relation, between a man and a
woman, arising out of a civil contract to which the consent of parties
capable of making it is necessary.; Tennessee Senate Bill 2305 (approved
by Governor May 15, 1996); Utah Code Ann. 30-1-4 (1995) ("A marriage
solemnized in any other country, state, or territory, if valid where solemnized,
is valid here, unless it is a marriage: (1) that would be prohibited and
declared void in this state, under Subsection 30-1-. . . (5)['between persons
of the same sex"] . . . .). In several other states executive orders
or legislative resolutions have outlawed or expressed strong public policy
against recognition of same-sex marriages. Alabama: Executive Order * (Aug.
30, 1996); Mississippi: Executive Order * (Aug. 22, 1996); 1996 LA H.C.R.
124. See also Hawaii Rev. Stats. #572-1 (1994). Internationally, the position
of nearly all nations appears to be that it would violate their strong
public policy to recognize same-sex marriage, and in some nations that
opposition to same-sex marriage could be so strong that same-sex marriages
from Hawaii could impair relations between the jurisdictions. See generally
Lynn D. Wardle, International Marriage and Divorce Regulation and Recognition:
A Survey, 29 Family L. Q. 497-517 (Fall 1995). Even the four Scandinavian
nations that have legalized same-sex domestic partnership have gone to
pains to distinguish that status from marriage.
The Defense of Marriage Act does not eliminate the need for legislation
such as S.B. 5398. DOMA only clarifies that federal Full Faith and Credit
principles do not compel any state to recognize same-sex marriage. It protects
the right of each state to decide for itself whether to recognize same-sex
marriages. Thus, under DOMA Washington lawmakers still will have to resolve
the question whether as a matter of Washington#s strong public policy same-sex
marriages contracted in a state where same-sex marriage is allowed should
be recognized.
Thus, S.B. 5398 resolves a question that Washington must resolve sooner
or later. As a matter of sound statecraft, the legislature should resolve
the question now, before the cases arise, rather than waiting until after
the courts have been inundated with litigation and are forced to "wing
it" without public policy direction from the legislature.
Section 3 of S.B. 5398 adds #male and female# to RCW 26.04.010 to explicit
define marriage as heterosexual. That codifies the decision in Singer v.
Hara, making it clear legislative policy, as well as judicial interpretation
of legislative policy. That is wise.
Section 4 of S.B. 5398 makes the proscription a prohibition in section
4(1)(c), and adds a new section that specifies that #A marriage between
two persons that is recognized as valid in another jurisdiction is valid
in this state only if the marriage is not prohibitted or made unlawful
under this section.# This directly addresses the marriage recognition question,
and to the extent it deals with same-sex marriage it is wise and sound.
The Need to Modify or Revise S.B. 5398
However, S.B. 5398 may be problematic because the marriage nonrecognition
provision may sweep more broadly than intended. Section 4(1)(b) together
with 4(3) would seem to apply not just to evasive marriages by Washington
residents who go elsewhere to enter into a first-cousin marriage and return,
but to persons moving to Washington from another state or country that
allows first-cousin marriages. For instances, at least nineteen American
states allow first-cousins to marry, and many foreign jurisdictions. As
drafted, the bill seems to suggest that first-cousin marriages lawfully
entered into in a state that allows first-cousin marriages would not be
recognized. If, after 30 years of marriage in such a state, the couple
moved to Washington their marriage might be invalidated. That may be an
unintended consequence.
Moreover, there is some ambiguity and possible conflict between the proposed
section 4 (1)(b) and (4)(2). Those provisions seem to define different
standards for consanguinity prohibitions. The new section 4(3) may exacerbate
the ambiguity.
I think these points can be clarified by amendment, and I will suggest
some language in my testimony. Revising S.B. 5398 section 4 (3) may be
the simplest. I suggest simply inserting after #under# and before #this
section# in the last line the language #subparts (1)(a), (1)(c), or (2)
of# - also by deleting all language after #female# in section 4(1)(c).
[I proposed some other minor amendments instead, which were accepted, I
understand.]
The purpose of S.B. 5398 is laudable. Marriage recognition needs to be
clarified, and this legislation will do that. It addresses a problem that
is urgent, and for that reason, it should be clarified as indicated, and
adopted.
Reprinted with permission of:
Lynn D. Wardle
Professor of Law
Brigham Young University School of Law