Legalizing Same-Sex Marriage By Popular Vote

JURIST Guest Columnist Walter Smith, University of Washington School of Law Class of 2013, discusses Washington state legally recognizing same-sex marriage by popular vote...

On December 6, Washington state certified its statewide election returns and officially became the first US state to begin legally recognizing same-sex marriages by popular vote. Maryland and Maine, the only other states to approve same-sex marriage by statewide ballot, passed their own measures on Election Day 2012. This year's votes approving same-sex marriage mark the end of what had been a continuous losing streak for same-sex marriage proponents, who had lost every single one of the 32 previous statewide ballot contests relating to same-sex marriage.

Now that the 2012 election is over, the question arises: is the fight over same-sex marriage at an end, at least in Washington? Below, I explore two ways that the struggle over same-sex marriage continues in states that have legally recognized same-sex marriage and elsewhere. First, same-sex couples legally married are treated differently from opposite-sex married couples under federal law and most states' laws. Therefore, states like Washington have a responsibility to advocate for judicial and legislative recognition for couples married within their jurisdiction. Second, Washington's electoral experience suggests that voters no longer view marriage substitutes like domestic partnership or civil unions as true equivalents to marriage, which should be relevant to courts considering whether marriage substitutes are a constitutionally acceptable alternative to same-sex marriage.

I. Taking on DOMA and State Laws Discriminating Against Married, Same-Sex Couples

Even same-sex couples legally married in states like Washington continue to be denied legal recognition and financial benefits by the federal Defense of Marriage Act (DOMA) and by state constitutional and statutory bans on same-sex marriage in most US jurisdictions. For example, Section 3 of DOMA provides that the federal government only recognizes marriages between opposite-sex couples. Accordingly, the federal government withholds many benefits from the surviving spouse of a same-sex married couple — including the estate tax exemptions and Social Security survivor's benefits available to surviving spouses of opposite-sex married couples. Because the discriminatory rules of Section 3 of DOMA are enacted and enforced at the federal level, they deny benefits to same-sex spouses in every state in the union, even those that recognize same-sex marriage.

Additionally, same-sex couples legally married in states like Washington who venture into other US states may find their relationships — including relationships to a same-sex partner's biological children — denied legal recognition by state law and Section 2 of DOMA, which purports to allow states to deny legal recognition to same-sex marriages from other states. Because most US states consider same-sex marriage contrary to public policy, same-sex married couples are only entitled to full legal recognition in nine states and the District of Columbia.

Same-sex marriage remains a live issue in states like Washington because other states' laws and DOMA will continue to deny legal recognition for same-sex couples lawfully married in Washington for the foreseeable future. Washington and other states recognizing same-sex marriage have a responsibility to protect couples lawfully married under local law through legal challenges or requests for legislative action from Congress and other states.

The US Supreme Court has accepted review of cases that could shake up the law relating to same-sex marriage in the coming term, including United States v. Windsor, a challenge to Section 3 of DOMA, and Hollingsworth v. Perry, a challenge to Proposition 8, California's 2008 ballot measure repealing same-sex marriage. Other states recognizing same-sex marriage, including Massachusetts, have taken a vigorous role in the DOMA litigation. Now that Washington recognizes same-sex marriage, the state should intervene in litigation like the DOMA and Proposition 8 cases to challenge discrimination against Washington married couples. Additionally, Washington could bring future legal challenges or undertake legislative advocacy to challenge state bans on same-sex marriage and Section 2 of DOMA.

II. Paradigm Shift: Accept No (Marriage) Substitutes?

The recent election is also relevant to the question of whether jurisdictions may extend marriage-like rights to same-sex partners without recognizing same-sex marriage outright. Although several jurisdictions, including Washington, have recognized such same-sex marriage substitutes, the recent election undermines arguments that substitutes are acceptable alternatives to marriage. Before the recent election, Washington already provided same-sex partners essentially all the rights of marriage under the "everything but marriage" law [PDF] passed in 2009. The question in 2012, then, was limited to whether, in addition to giving same-sex couples "everything but marriage" in the form of comprehensive domestic partnerships, the state should also recognize same-sex marriage.

Washington voters' conclusion that "everything but marriage" was not enough points toward the meaningful intangible qualities marriage substitutes lack. Moreover, both proponents and opponents of same-sex marriage in Washington apparently agreed that even "everything but marriage" is not the same as marriage; were it otherwise, 2012's hard-fought electoral contest would not have been necessary.

Whether marriage substitutes provide enough recognition for same-sex couples is relevant not only as a question of policy but also as a matter of constitutional law. Perry, the California Proposition 8 case pending before the US Supreme Court, arose when voters overturned a state court ruling recognizing same-sex marriage in 2008. Despite enacting Proposition 8, however, California has continued to recognize domestic partnerships that are legally equivalent to marriage. One possible argument in favor of Proposition 8 is that it does not, in fact, discriminate against same-sex couples because domestic partners are given the same rights as married couples under California law. In its opinion in Perry, the US Court of Appeals for the Ninth Circuit offered a colorful response to this line of argument, and contrasted the significance of marriage and marriage substitutes:

We are excited to see someone ask, "Will you marry me?", whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?" ... Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.
The US Supreme Court has not yet addressed whether marriage substitutes provide a constitutionally adequate alternative to the right to marry. If the Court reaches this question in the coming term, it should consider the Ninth Circuit's argument above in light of the increasing consensus that domestic partnerships and the like are not substitutes for marriage. The Court could accordingly recognize the hypocrisy of laws extending marriage-like rights, but not marriage, to same-sex couples. As the Court once recognized in Brown v. Board of Education, when a state undertakes to provide an important right to its citizens, it must do so on equal terms.

Washington's 2012 election shows that public opinion relative to same-sex marriage is rapidly shifting. Yet the shift in attitudes at the state level does not signify the end of the struggle for legal recognition of same-sex married couples in the US, since federal and state laws continue to deny recognition to same-sex couples married in states like Washington. Even though the Supreme Court will consider same-sex marriage related challenges in the coming term, the Court is unlikely to adopt a sweeping holding recognizing a fundamental constitutional right to marry a person of the same sex. While the Court overturned laws forbidding intermarriage between white and nonwhite races in Loving v. Virginia in 1967, Loving only invalidated laws in some 16 states, while 41 states currently ban same-sex marriage. But the Court could invalidate laws in the smaller number of jurisdictions that extend marriage-like rights to same-sex couples while denying them the right to marriage. In doing so, the Court would give constitutional significance to the intuitive judgment of voters that marriage substitutes and marriage are not created equal.

Walter Smith participated in University of Washington School of Law Moot Court Honor Board and the UCLA School of Law Williams Institute Appellate Level Moot Court competition in Sexual Orientation and Gender Identity Law.

Suggested citation: Walter Smith, Legalizing Same-Sex Marriage By Popular Vote, JURIST - Dateline, Jan. 26, 2013,

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