UNITED STATES
Washington
Higher Law. Washington is bound by the United States Constitution, federal law, and the international obligations of the United States.
Section 2 of the federal Defense of Marriage Act purportedly authorizes the state to disregard any “relationship between persons of the same sex that is treated as a marriage under the laws of [another] State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S.C. § 1738C. The constitutionality of that provision is disputed.
Supreme State Law. Washington’s constitution does not expressly address same-sex unions, but the state supreme court has held that it does not prohibit the state from excluding same-sex couples from civil marriage. Andersen v. King County, 138 P.3d 963 (Wash. 2006) (rejecting state constitutional challenge to marriage ban but also seeing “no reason … why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.”); see also Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App.), rev. denied, 84 Wash. 2d 1008 (1974).
Nor does the state constitution likely constrain the state’s discretion in conflict of laws to any significantly greater extent than the federal constitution does. Although the state constitution contains a due process clause (art. I, § 3) and an approximate analogue to the federal equal protection clause (art. I, § 12), these clauses have not yet been interpreted much, if any, more broadly than their federal counterparts. See State v. Manussier, 921 P.2d 473 (Wash. 1996) (holding state due process clause is no broader than federal counterpart); Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 83 P.3d 419 (Wash. 2004) (holding equal protection has broader meaning in at least one limited set of circumstances); see also State v. Gunwall, 720 P.2d 808 (Wash. 1986) (establishing framework for determining whether state constitutional provision affords broader protection than its federal counterpart).
Internal Family Law.
Marriage. Washington has expressly defined marriage as an exclusively opposite-sex relationship and prohibited same-sex marriages since 1998. Wash. Rev. Code §§ 26.04.010(1), 26.04.010(1)(c). [Off’l Leg. Hist.]
Civil Unions. Washington neither provides for nor expressly prohibits civil unions.
Domestic Partnerships. Washington has authorized same-sex domestic partnerships since 2007. Act of Apr. 21, 2007, 2007 Wash. Sess. Laws ch. 156. [Off’l Leg. Hist.]
Meretricious Relationships. As a matter of equity, Washington courts will order divisions of community-like property when unmarried couples separate. This doctrine of the “meretricious relationship” appears to extend to same-sex couples, although the legislature failed formally to provide for equitable division in the domestic partnership law. See Gormley v. Robertson, 83 P.3d 1042 (Wash. Ct. App. 2004) (extending doctrine); Vasquez v. Hawthorne, 33 P.3d 735 (Wash. 2001) (implicitly endorsing extension); In re Parentage of L.B., 122 P.3d 161, 166 n.6 (Wash. 2005) (citing Gromley with approval); cf. Fleming v. Spencer, No. 47872-9-I, 2002 WL 171249 (Wash. Ct. App. 2002) (extending doctrine to opposite-sex relationship involving man married to another woman).
Conflicts Law.
Formalization of Same-Sex Unions in Washington. Washington presumably applies the formal and substantive rules of its own internal law to the registration of domestic partnerships in the state, notwithstanding the personal law of either partner. The domestic partnership law has no residency requirement.
Recognition of Foreign Same-Sex Unions.
- Marriages. Washington expressly prohibits the recognition of foreign same-sex marriages, at least as marriages. Wash. Rev. Code § 26.04.020(3). Whether that provision forbids recognition of a foreign same-sex marriage as a domestic partnership is an open question. If it would not, then then question whether a foreign same-sex marriage would be so recognized is an open question of state common law. Washington adheres to the American rule that recognizes as valid an opposite-sex marriage that was valid where formalized. See Fisch v. Marler, 97 P.2d 147 (Wash. 1939) (post-divorce remarriage); Johnson v. Johnson, 106 P. 500 (Wash. 1910) (first cousins); State v. Fenn, 92 P. 417 (Wash. 1907) (post-divorce remarriage); In re Wilbur’s Estate, 35 P. 406 (Wash. 1894) (interracial couple); Restatement (Second) of the Conflict of Laws (1971). Also relevant may be provisions of the domestic partnership law declaring that “[t]his 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” (§ 1) and that “[n]othing in this act affects any remedy available in common law” (§ 7(2)). Whether those provisions may limit the application of common law conflict of laws principles is a nice question of statutory interpretation.
- Civil Unions. Washington law does not expressly address the recognition of foreign civil unions. Recognition of foreign civil unions (as either civil unions or as domestic partnerships) would present some of the same questions as recognition of foreign same-sex marriages.
- Domestic Partnerships. Washington law does not expressly address the recognition of foreign domestic partnerships. Presumably, however, the state would recognize foreign domestic partnerships since its own internal law also provides for them.
Cases