Washington State’s official state motto is “al-ki,” Chinook for “by and by.” But those of us, gay and non-gay, who want to see the state end discrimination against same-sex couples and their kids can’t wait for the by and by. We have work to do now—in our own community, among allies and friends, with our fellow citizens, and with our elected officials, particularly state legislators.
Any week now, the Washington Supreme Court could rule on the case brought by several same-sex couples challenging their exclusion from marriage. The couples, represented by Northwest Women’s Law Center, Lambda Legal, and the ACLU, made a powerful case. They demonstrated that they and their kids are harmed by the government’s denial of marriage licenses. And they contend, rightly, that couples like them—couples who are doing the work of marriage right here in Washington: caring for one another, raising kids, worrying about aging parents, paying taxes, contributing to the community—deserve an equal commitment in law. That commitment in Washington is called marriage.
Two respected lower-court judges found that the state failed to justify the continued exclusion of these Washington couples from marriage. And, of course, there is no good reason to withhold the freedom to marry from some Americans based on their sex or sexual orientation, any more than there was to withhold the freedom to marry based on race or religion.
As the decision draws near, it is important that those who favor equality and inclusion use this time to unite around a few clear points that will help defend a victory against the inevitable right-wing attack and help explain to the “reachable middle” why ending marriage discrimination is the right thing to do. Each of us must talk to the people around us to explain why marriage matters, why we care about ending discrimination here in Washington, and why we trust them to be fair and do the right thing.
Gay and non-gay people who want to see Washington State move forward must also work now to help stiffen the spine of legislators in the event they are called upon to take action. We must help legislators reject the predictable right-wing effort to cement anti-gay discrimination into the state constitution, which would require a two-thirds vote in favor in each house. And if the court rules that discrimination against gay families must end but gives the legislature the first crack at deciding how, we must make sure legislators reject half-measures or piecemeal responses that fall short of full inclusion and equality.
The right way to end discrimination in marriage is to, well, end discrimination in marriage. Not to create something new, different, lesser, or other. Not to take our nation, again, down the path of separate and unequal treatment for some. Not to say to some couples and their kids here in Washington, “You come in the front,” while telling others to go around back. Couples seeking the freedom to marry deserve a clear and simple answer: marriage—same rules, same responsibilities, same respect.
To forestall any ill-thought-out flinching or faint-heartedness from friends of fairness, let’s all be clear now—and then spread the word—that the freedom to marry matters. Here’s why:
Marriage offers an incomparable—and irreplaceably broad—array of protections and responsibilities under state, federal, and international law. This safety net affects every area of life from birth to death, with taxes in between. The rules relating to marriage have been worked out through courts and legislatures to cover an astonishing array of contingencies, and cannot be replicated by any other contract, statute, or new invention by the state. No separate status—whether called civil union, domestic partnership, or shmarriage—provides economic justice to same-sex couples and their kids. Around the world, everyone knows what marriage entails. No newly invented status brings what comes, tangibly and intangibly, with a legal marriage license and the two words, “I do.”
As I describe in my book, Why Marriage Matters: America, Equality, and Gay People’s Right to Marry, there are several reasons why civil union is no substitute for marriage, and not the right answer for couples, communities, and our country:
• One of the main protections that come with marriage is the word marriage, and the security, clarity, and dignity it brings to families. To be denied the vocabulary of marriage and its meaningful, resonant, and readily understood statement of love and commitment—and instead, have to fumble for 10 documents, explain a new term that doesn’t even have a verb, and, possibly, retain a lawyer just to protect your family in a time of crisis—is not fair and not equal.
• Civil union is good, but limited, and does not provide the full range of protection for families. There is only one system in our country that protects families no matter where they live or travel; it’s called marriage. Civil unions do not provide the 1,138 federal incidents of marriage, from social security to immigration to tax equity, or assure families that their legal relationship will be respected outside their home state.
• Civil union is a product of the work to win marriage itself; we don’t get even civil union by asking for civil union. Support for civil union represents a placeholder in people’s thinking as they grapple with the need to end discrimination against gay people, same-sex couples, and our kids. Running away from a discussion of how the denial of marriage harms families undercuts the reachable middle’s ability to rise to fairness.
• The opponents of equality are against civil union as well as marriage, as shown by the anti-gay amendments being pushed state by state and in Congress by right-wing groups. These attack measures would deny the freedom to marry, but also civil union, domestic partnership, and any other bit of protection, large or small. Separate and unequal “compromises” satisfy no one, and legislators who capitulate on questions of fundamental fairness and basic rights buy no one off, gain no peace, spare the state no debate, avoid no primary challenges, but rather just fall short on all sides. If we are going to have to fight anyway, why not fight for what we fully deserve? In fact, authenticity and leadership actually help politicians guide the public to the right result. Consider: In Vermont, where legislators created civil union rather than ending marriage discrimination, a right-wing firestorm followed anyway, with hateful attack ads across the state, primary challenges, and electoral turbulence. By contrast, in Massachusetts, every single legislator who supported marriage equality won reelection, and some of the loudest opponents were defeated, because the public had a chance to see leadership, hear the case, and, most importantly, see with their own eyes that when same-sex couples married, they didn’t use up the marriage licenses and the sky didn’t fall.
To sum it up, either marriage and civil union are the same, in which case, why do we need two lines at the clerk’s office? Or they are not the same, in which case, what is the government withholding from these Washington State families, and why?
Let us hope the Supreme Court does its job and upholds the Constitution’s command of equality for all. If the question of marriage discrimination goes to the legislature, let us hope our elected officials do their jobs and end that discrimination, rather than repackaging it. And in the meantime, let us each do our job: helping people around us understand why marriage matters, why equality and fairness require an end to discrimination in marriage. Let’s not begin these conversations by bargaining against ourselves.
Evan Wolfson is Executive Director of Freedom to Marry (www.freedomtomarry.org) and author of Why Marriage Matters: America, Equality, and Gay People’s Right to Marry (Simon & Schuster 2004), now in paperback. This article is adapted from a speech Wolfson gave to the Legal Marriage Alliance of Washington in celebration of its 10th anniversary on October 16.
For more information, see www.equalrightswashington.org.