Marriage equality in Washington state

November 20, 12:26 AMSeattle History ExaminerBenjamin Lukoff

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Seattle anti-Proposition 8 protest, November 15,
2008. Photo by Flickr member joeszilagyi, used
under Creative Commons license

Seattle was one of the many cities across the country which held a protest on November 15 against the passage of California's Propsition 8 and for marriage equality. 

Signs like the one at right and supporters' citation of Loving v. Virginia as a precedent made me wonder about the history of marriage equality in Washington. This, of course, is not among the jurisdictions in which same-sex couples can marry. Not yet, anyway. And since Loving, no state has constitutionally been able to ban mixed-race marriages. But what about pre-1967 Washington? And have there been attempts to legalize gay marriage here?

Gay marriage first: it looks like the first test was Singer v. Hara. On September 20, 1971, John Singer and Paul Barwick tried to get a marriage license from King County. 

"Marriage is a civil contract which may be entered into by persons of the age of 18 years [or over]." We are persons of that age.

They were refused, and filed the above-mentioned lawsuit. (Hara is Lloyd Hara, the county auditor at the time, now on the Port of Seattle Commission.) In 1972, they lost in Superior Court, and in 1974, they lost in the Court of Appeals. The Washington State Supreme Court refused to review the case in October of that year.

Fourteen years later, in 1998, the Defense of Marriage Statute was passed on the third attempt, amending RCW 26.04.010 to specifically define marriage as between one man and one woman. (Apparently proponents had threatened, if it had been vetoed again, to pass a measure calling for a referendum, which the Democrats desperately wanted to avoid.)

In 2004, Andersen v. Sims and Castle v. Washington were filed. Both lower court judges found broadly in favor of the plaintiffs. They were consolidated the next year, on appeal, as Andersen v. King County, and in 2006 the state Supreme Court reversed the trial judges' decisions and upheld the Defense of Marriage Statute. In 2007, the state instituted domestic partnerships, which came with some, but not all, the benefits of heterosexual marriage.

The legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.

As for mixed-race marriage, the history is, perhaps surprisingly, a lot simpler. Though, as noted above, it wasn't until 1967 that anti-miscegenation laws were struck down en masse in the United States, a ban was effect in Washington state for only 13 years, during the territorial period. According to Lovingday.org, the following statute was passed in 1855. Note that its effect was to be retroactive:

Be it enacted by the Legislative Assembly of the Territory of Washington, That all marriages heretofore solemnized in this territory, where one of the parties to such marriage shall be a white person, and the other possessed of one-fourth or more negro blood, or more than one-half Indian blood, are hereby declared void.

According to the Brief Amici Curiae of History Scholars [DOC] in Andersen, another statute was passed in 1866; however, they were repealed in 1868. (Marriages that took place during the period of the ban were not retroactively legitimized, however, as decided in 1896 in Follansbee v. Wilbur.)

However....

Illustration from Communist Party newspaper
Voice of Action accompanying piece "Anti-intermarriage
bill is attempt to smash unity," February 15, 1935, p. 3.
Note presence of one black man, one white man, and
one Asian man — and no women.

Attempts were made in 1935 and 1937 to pass anti-miscegenation laws anew... but both failed. The Seattle Civil Rights and Labor History Project, whose history of the KKK in Seattle I posted about the other day, also has a great page on these campaigns.

The 1935 bill came about when King County Auditor Earl Miliken wished to prevent the marriage of a Filipino man to a white woman. He persuaded Warren Magnuson — the Warren Magnuson, who was county prosecutor at the time, to propose a bill to Dorian Todd, a Democratic member of the House. Yes, that's right, this effort came from Seattle Democrats.

Not only would it have banned marriages of whites to blacks, Asians, Pacific Islanders, and Australian Aborigines, it also seemed to exclude eastern and southeastern Europeans from the definition of "white." As I read it, it would have banned marriages between, say, Germans and Koreans, but would have allowed marriages between Germans and Russians and between Koreans and Russians. (The latter combination is of particular personal interest to me.) Apparently only western Europeans were worth "protecting" from racial admixture. I am not even sure how Jews, Arabs, Gypsies, North Africans, Central and South Asians, and the like fit in, but my guess is, not well.

"White person" shall mean ... Caucasian ... and all other persons whose ancestral lineage can be traced to inhabitants of any European country which had a political existence, or a national identity, or racial distinction as a self-governing state prior to 1800, except those of Eastern and southeastern Europe embracing the Balkan peninsula or states, and Russia as now delineated...

That bill went down to defeat, but in 1937, state senator Earl Maxwell introduced an even harsher measure, which not only called for interracial marriages to be void, but also called for penalizing those who attempted to violate the law. This one died in committee.

I am not gay, but I am the child of a mixed marriage: my father was a Russian Jew, and my mother a Korean. Actually, it looks like the territorial statue wouldn't have applied in their case, but the 1935 and 1937 bills certainly would have. They were married in 1966 in Washington, when it would still have been an illegal act in Georgia, Mississippi, Missouri, South Carolina, and Virginia. It's hard to believe — Loving was only 41 years ago. One wonders in how many states same-sex marriage will be recognized come 2049, or if the Supreme Court will have legalized it nationwide — and if people will look at 2008 the same way we do at 1967.