Marriage Equality and Gay Rights in Washington

  • By Alan J. Stein
  • Posted 11/29/2012
  • Essay 10255

Washington became one of the first three states, along with Maine and Maryland, to enact same-sex marriage at the ballot box when voters approved Referendum 74 on November 6, 2012. (Other states had legalized same-sex marriage earlier, but those decisions were made by courts or legislators rather than by popular vote.) This essay follows the path to marriage equality in Washington, beginning in 1971 when two men applied for a King County marriage license and launched the first gay marriage lawsuit when they were refused. It examines some of the civil rights achieved by gays and lesbians along the way.

Request Denied

On September 20, 1971, John Singer (later Faygele benMiriam, 1944-2000) and Paul Barwick (b. 1947), both ex-servicemen, walked into the King County auditor's office and demanded a marriage license. The county had never before received a marriage license request from a same-sex couple, and auditor Lloyd Hara (b. 1939) contacted the county prosecutor's office seeking advice. Norm Maleng (1938-2007), then chief civil deputy prosecutor, told the auditor to deny the application.

Years later, Hara stated that he agreed with the couple, but his hands were tied. "As a person of color, I've always been concerned about discrimination against anyone. I thought it was wrong then and I still firmly feel the same way" (The Seattle Times, April 4, 2006). In 1972, Singer and Barwick sued Hara, claiming that their constitutional rights had been violated.

Singer and Barwick's claims were rejected by the King County Superior Court in a ruling later upheld by the state Court of Appeals. By this time, both plaintiffs were out of money, and were concerned that if they appealed again and were rejected by the Washington State Supreme Court, the debate over same-sex marriage would come to an end. It didn't, but it took decades for the next step to occur. Meanwhile other gay rights underwent significant expansion.

Jobs and Housing

In 1973, Seattle City Council Member Jeanette Williams (1914-2008) championed a city ordinance that would prohibit job discrimination based on marital status, sexual orientation, or political ideology. At the time, state laws pertaining to job discrimination enumerated marital status, but not the other two. Federal laws already prohibited hiring discrimination based on sex, race, age, and religion. The city ordinance was approved with little controversy. It was the first time in city history that gays were mentioned in a law.

In 1975, Seattle amended its open housing law to prohibit discrimination due to sexual orientation in property sales and rentals. The City Council voted 5 to 4 in favor of the amendment. During the debate, some argued that Washington's sodomy law made it illegal to engage in certain sexual behaviors and that landlords should not be asked to give way to such activities.

Revising the Code

Enacted in 1893, Washington's sodomy law was vaguely written and only codified the offense as a "crime against nature." In 1909, the wording was expanded to include those "who shall carnally know any male or female person by the anus, or with the mouth or tongue" (Session Laws, 1909). The punishment for sodomy was up to 10 years in prison.

Under the law, oral and anal sex were illegal for consenting adults, either heterosexual or homosexual. Beginning in the 1960s, many states began repealing their sodomy laws, deeming them ineffective and a government intrusion into privacy. Washington legislators attempted to change the state's sodomy law in 1971, but the proposal died in committee hearings.

In 1975, during the first comprehensive revision of the state's criminal code since 1909, state senator Pete Francis (b. 1935), chair of the senate Judiciary Committee, pushed for repeal of the sodomy law -- as well as prostitution laws -- which he considered "victimless crimes." He was met with resistance from conservative senator Jack Cunningham (b. 1931), who argued that repealing the sodomy law would "repeal the Ten Commandments" (Atkins, Gay Seattle, 222).

After Cunningham won the first vote, Francis dropped the idea of legalizing prostitution and repackaged the sodomy law repeal into an omnibus of reforms that had already received support from other conservatives. Cunningham balked and asked for a conference committee, but his motion failed in a 23-23 tie. The bill went to a senate vote and, with some parliamentary maneuvering from Francis, the new criminal code passed 28-20, and was signed into law -- without comment -- by Governor Dan Evans (b. 1925).

Meanwhile, in Florida

The repeal of Washington's sodomy law took effect on July 1, 1976, long after Seattle's ordinances protecting employment and housing rights for gays and lesbians had been in place. Meanwhile, activists across the country were making progress in securing gay rights in other states, but were soon met with a conservative backlash.

In 1977, Dade County, Florida, passed an ordinance prohibiting discrimination based on sexual orientation. In response, former beauty queen Anita Bryant (b. 1940), the spokesperson for the Florida Citrus Commission, began a campaign to repeal the ordinance, claiming that Miami's gay community was "trying to recruit our children to homosexuality" (The Seattle Times, February 16, 1977).

Through the efforts of Bryant's Save Our Children coalition, the ordinance was repealed, drawing many high-profile conservatives to her cause of repealing similar anti-discrimination laws across the nation. This in turn galvanized gay activists and their supporters, who resolved to maintain the rights that they had recently achieved. Battle lines were drawn in municipalities around the country, including in Seattle.

Initiative 13

In 1978, Seattle police officer David Estes (b. 1947) filed an initiative to repeal the city's anti-discrimination ordinances. Estes and fellow officer Dennis Falk (b. 1940) formed Save Our Moral Ethics (SOME) to lobby in favor of what became Initiative 13. Estes, a Mormon, claimed that the repeal was not about civil rights, but of morality. He believed that homosexuality was vulgar and an affront to biblical teachings.

His rhetoric was strong. "They are a very passive people until you get them mad," he told The Seattle Times (May 31, 1978), adding "Once homosexuals are aroused they are the most vicious people I've ever seen." Estes also claimed that half of the homicides in the United States were committed by gays.

Opposition to Initiative 13 was led by Citizens to Retain Fair Employment (CRFE) chaired by Charles Brydon (b. 1939), co-founder of Seattle's Dorian Group -- an organization of gay businesspeople. CRFE's steering committee was a broad coalition of 85 Seattleites that included civil rights leaders, City Council members, former and current state legislators, and religious moderates.

The Voters Decide

The "No on 13" campaign already had the support of the gay community, but in order to win, support also had to come from heterosexuals. CRFE focused its campaign as an issue of privacy, claiming that the repeal of anti-discriminatory ordinances would subject everyone to intrusive background checks by landlords and employers. Walt Crowley (1947-2007), chair of CRFE's political committee, also recommended that anti-repeal backers should keep a low profile during the campaign, "to avoid inadvertently contributing any momentum to the petition drive" (Seattle Gay News, June 23, 1978).

Other more radical gay and lesbian groups thought otherwise, but CRFE raised more money, and was able to get its message of moderation out to the public through radio and television ads. In August, Estes and Falk handed in their petitions to the city clerk's office, with 27,000 signatures -- almost 10,000 more than they needed -- placing Initiative 13 on the November ballot. But by October, SOME began to run out of money, whereas CRFE and other groups opposed to Initiative 13 were still receiving funds, indicating widespread support.

On November 7, 1978, Initiative 13 went down to defeat, with a vote of 64,225 (37 percent) in favor of repeal to 108,124 (63 percent) opposed -- making Seattle the first city in the United States to vote in favor of gay rights. In later years Tacoma, Spokane, and other Washington municipalities would follow suit.

The Seattle vote against Initiative 13, along with the same-day defeat of the similar "Briggs Initiative" in California, effectively stopped Anita Bryant's crusade to roll back protections against discrimination for gays and lesbians. But a resurgence of conservatism in the 1980s would slow the advance of gay and lesbian civil rights.

Defense of Marriage Act

The national debate over gay marriage heated up in 1993 after the Hawaii Supreme Court ruled that denying marriage to same-sex couples violated equal protection laws guaranteed by that state's constitution. The Hawaii legislature later defined marriage as between one man and one woman, but conservatives feared that if any state were able to sanction same-sex marriage, other states would have to recognize those marriages under Act IV of the United States Constitution, which states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

In 1996, Georgia Representative Bob Barr (b. 1948) introduced the Defense of Marriage Act (DOMA) in the House of Representatives. The act defined marriage as a legal union between a man and a woman, and provided that no state, territory, possession, or Indian tribe should be required to recognize any other state's same-sex marriage. Opponents of the bill questioned its constitutionality, but it received strong support in both houses of the Republican-controlled Congress, and was signed into law by President Clinton.

In Washington, conservative legislators introduced a bill prohibiting same-sex marriage in 1997, but the state's DOMA was vetoed by Governor Gary Locke (b. 1950), who stated, "I oppose any measure that would divide, disrespect or diminish our humanity. Our overarching principle should be to promote civility, mutual respect and unity, and to reject hate, violence and bigotry. This legislation fails to meet this test" (The Seattle Times, February 22, 1997). Locke vetoed a similar bill in 1998, but the veto was overridden by both houses -- with almost no discussion and no debate -- aided by Democratic legislators who worried that if the issue was forced into the hands of the electorate in the upcoming election, it would bring out too many conservative voters in swing districts.

In the Courts

In 2003, the United States Supreme Court struck down a Texas sodomy law as an unconstitutional violation of privacy. This decision invalidated all state sodomy laws still in effect, but the court made it clear that by affirming gay rights, it did not give gays and lesbians the right to marry under state law. Nevertheless, many saw the ruling as a step toward the legalization of same-sex marriage.

In 2004, after President George W. Bush (b. 1946) called for a U.S. Constitutional amendment banning gay marriage, gays and lesbians began pushing the issue harder through protest rallies and marches. In March, eight same-sex couples applied for marriages licenses in King County -- knowing that they would be denied -- and then filed a lawsuit challenging the constitutionality of state marriage laws.

In August 2004, King County Superior Court Judge William L. Downing (b. 1947) ruled in favor of the plaintiffs and found the state's 1998 Defense of Marriage Act to be unconstitutional. One month later, in a another case involving 11 same-sex couples, Thurston County Superior Court Judge Richard Hicks (b. 1943) similarly ruled that the state cannot give the privilege of marriage to one group of people and deny it to others without good reason.

In 2005, the two cases were merged and brought before the Washington State Supreme Court. In July 2006 the court, by a 5-4 vote, upheld Washington's Defense of Marriage Act, delivering a blow to gay-rights advocates. Meanwhile, progress was being made on other fronts.

Domestic Partners

On January 31, 2006, Governor Christine Gregoire (b. 1947) signed a law that added "sexual orientation" to existing prohibitions on discrimination in employment, housing, lending, and insurance. For years previously, the bill had been stymied in the legislature, winning repeated passage in the House only to be narrowly shot down in the Senate. The change came when Republican Bill Finkbeiner (b. 1969), who voted against it in 2005, changed his vote in 2006. Opponents of the law immediately vowed to file a referendum to repeal it, but did not gain enough signatures.

In 2007, Gregoire signed a bill creating same-sex domestic partnerships. The law gave gay and lesbian couples -- as well as unmarried heterosexual couples in which one partner was 62 or older -- the right to visit a partner in the hospital, inheritance rights, and authority over autopsies and organ donations. The following year, the domestic partnership law was expanded to include 170 more rights and responsibilities previously available to only married couples.

In 2009, Gregoire signed a bill granting gay and lesbian couples all of the state-provided benefits that married couples have. Opponents of the law saw it as one last step before gay marriage was made legal in Washington, and collected enough signatures to subject the "everything but marriage" bill to a public vote. Supporters of Referendum 71 argued that the issue was not marriage but legal rights and protections for same-sex couples. In November 2009, voters approved R-71, and Washington voters became the first in the nation to ratify domestic partnerships for same-sex couples

Marriage Equality

In January 2012, with public opinion shifting more and more in favor of gay rights, Senate Bill 6239 was introduced in Olympia to legalize same-sex marriage in Washington. It passed the Senate with a vote of 28-21, mostly along party lines. The House passed the same measure, 55-43. Governor Gregoire signed the bill into law on February 13, and Washington joined six other states and the District of Columbia in allowing same-sex marriage.

Massachusetts had become the first state to legalize same-sex marriage in 2004, following a ruling by its Supreme Judicial Court. California was the second state to do so, but only temporarily: a 2008 ruling in favor of marriage equality by the California Supreme Court was effectively reversed later that year when voters passed a state constitutional amendment banning same-sex marriage. However, by 2012 same-sex marriage had also been made legal in Connecticut, Iowa, New Hampshire, New York, and Vermont, as well as the District of Columbia, in each case by courts or legislative bodies. None of the few attempts to enact marriage equality by popular vote had succeeded, and in many states voters had passed laws or constitutional amendments banning same-sex marriage, with bans winning every time they appeared on the ballot.

Opponents of Washington's same-sex marriage law were able to block its implementation by gathering enough signatures to require a statewide voter referendum on the law. After the same-sex marriage law was scheduled to appear on the ballot as Referendum 74, it received support from high-profile Washington businesses such as Amazon, Starbucks, Nordstrom, and REI. The marriage equality referendum also received support from many Washington newspapers. Opposition fundraising was strongest from the National Organization for Marriage and the Knights of Columbus, a Catholic fraternal service organization.

In a landmark election that saw sweeping changes to the nation's political landscape, Washington voters approved Referendum 74 on November 6, 2012, with more than 53 percent of the vote. Washington was joined by Maine and Maryland, where voters also passed same-sex marriage measures in the November 6 election, as the first three states to approve marriage equality by popular vote. In addition, Minnesota voters rejected a constitutional ban on same-sex marriage, giving marriage equality proponents a sweep of all four states in which the issue appeared on the ballot, following an unbroken string of electoral losses.

Washington's voter-approved same-sex marriage law took effect on December 6, 2012, earlier than the laws passed by Maine and Maryland voters. Just after midnight on that date, King County Executive Dow Constantine (b. 1961) signed the first same-sex marriage licenses ever issued by the county. The very first went to Jane Abbott Lighty and Pete-e Petersen, more than 35 years after they became a couple and 41 years after King County denied Singer and Barwick's request for a license. Many of the couples receiving the first licenses, including Lighty and Petersen, married on Sunday, December 9 (the earliest date following the mandatory waiting period), becoming the first same-sex couples in the United States to marry under a law enacted by their fellow citizens.


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Note: This essay was updated on December 10, 2012.

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