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January 7, 2013

Questions & Answers About Marriage for Same-Sex Couples

by WSBA
same sex marriage
2012 was a historic year for efforts to extend civil marriage to same-sex couples – and 2013 could bring even more significant changes.

same sex marriage2012 was a historic year for efforts to extend civil marriage to same-sex couples – and 2013 could bring even more significant changes.

On November 6, Washington voters approved Referendum 74 to allow same-sex couples to marry. The referendum passed by a margin of 53.7%to 46.3% and took effect on December 6. Voters in Maine and Maryland also approved similar measures. These victories marked the first time that voters in any state have approved marriage for same-sex couples at the ballot box.

As an attorney who has worked on lesbian, gay, bisexual, and transgender issues for many years, I’ve received dozens of questions about the new law. Here’s a quick overview of some commonly asked questions:

Do same-sex couples need to marry again in Washington if they legally married in another state or country before Referendum 74 passed? 

No. Washington will recognize marriages of same-sex couples who were legally married in another state or country. It’s not necessary for those couples to remarry in Washington for their marriages to be recognized here.

How does Referendum 74 change the state’s domestic partnership law?  

Referendum 74 made important changes to Washington’s domestic partnership law. Previously, couples could register domestic partners with the state if both partners were of the same sex, or if one partner was 62 years old or older. However, starting on June 30, 2014, state-registered domestic partnerships will only be available for couples in which at least one partner is 62 or older.

What happens to same-sex couples who registered as domestic partners in Washington? 

In most cases, these couples must now decide whether they want to become married. That’s because Referendum 74 phases out domestic partnerships on June 30, 2014, except for senior couples. If a couple in a registered domestic partnership wants to get married now, they can do so. But if they do nothing, their domestic partnership will be automatically converted to a marriage by the state on June 30, 2014, unless (1) at least one partner is 62 or older on June 30, 2014; (2) the couple has started proceedings to dissolve their domestic partnership by June 30, 2014.

Will the federal government recognize marriages of same-sex couples?  

Not yet. The federal Defense of Marriage Act (DOMA) prohibits the federal government from recognizing marriages of same-sex couples. That means married same-sex couples in Washington do not have over 1,000 federal rights and benefits provided to other married couples — ranging from the ability to file joint federal tax returns to the right to receive Social Security survivor benefits if their spouse dies. But as discussed below, the Supreme Court will hear a challenge to DOMA later this year, so this policy could change soon.

Where can I get more information? 

There are a growing number of resources to answer questions about marriage for same-sex couples in Washington. You can read this publication put together by Legal Voice, the ACLU of Washington, Lambda Legal, and the QLaw Foundation to answer some frequently asked questions about the law. You can also watch this video of a legal panel held on December 3 entitled “Marriage Equality Explained.” In addition, the WSBA held a CLE on December 5 that covered many aspects of the law.

What’s happening in the U.S. Supreme Court? 

In December, the Supreme Court announced it would hear two cases concerning marriage for same-sex couples.

The first case, United States v. Windsor, challenges the provision of DOMA that prohibits the federal government from recognizing marriages of same-sex couples who are legally married under the laws of their home states. The Second Circuit struck down this provision of DOMA as unconstitutional in October 2012; the First Circuit issued a similar ruling earlier in the year.

The second case, Hollingsworth v. Perry, challenges California’s ban on marriage for same-sex couples, which voters approved in 2008 as Proposition 8. The Ninth Circuit struck down the ban in 2012, affirming an earlier ruling by the U.S. District Court that the law was unconstitutional.

The Court could hear both cases as early as March 2013, with decisions expected in late June. Stay tuned for more developments!

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