Singer v. Hara

• Decision Date: 20 May 1974
• Docket Number: No. 1879--I,1879--I
• Citation: 522 P.2d 1187,11 Wn.App. 247
• Parties: John F. SINGER and Paul C. Barwick, Appellants, v. Lloyd HARA, Auditor of King County, Respondent.
• Court: Washington Court of Appeals

Page 247

11 Wn.App. 247

522 P.2d 1187

John F. SINGER and Paul C. Barwick, Appellants, v. Lloyd HARA, Auditor of King County, Respondent.

No. 1879--I.

Court of Appeals of Washington, Division 1.

May 20, 1974.

Rehearing Denied July 18, 1974.

Review Denied Oct. 10, 1974.

Smith, Kaplan & Withey, Michael E. Withey, Seattle, for appellants.

Christopher T. Bayley, King County Pros. Atty., Richard D. Eadie, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Chief Judge.

Appellants Singer and Barwick, both males, appeal from the trial court's order denying their motion to show cause by which they sought to compel King County Auditor Lloyd Hara to issue a marriage license to them. According to the parties' agreed statement of facts, appellants applied for a marriage license on September 20, 1971, and after respondent Hara refused to grant such a license, the motion to show cause was filed on April 27, 1972. In an order dated August 9, 1972, the trial court denied the motion on the basis that there was no prima facie showing that Washington law permits the marriage of two people of the same sex, and that the denial of a marriage license to two people of the same sex does not constitute an abridgement of any constitutional rights. Appellants' petition for writ of certiorari was denied by this court on September 22, 1972, but the denial was accepted as a proper notice of appeal from the trial court's order.

Appellant's argue three basic assignments of error, namely, (1) the trial court erred in concluding that the Washington marriage statutes, RCW 26.04.010 et seq., prohibit same-sex marriages; (2) the trial court's order violates the Equal Rights Amendment (ERA) to the Washington State Constitution, Const. art. 31, § 1; and (3) the trial court's order violates the eighth, ninth and fourteenth amendments to the United States Constitution. ¹

Directing our attention to appellants' first assignment of error, it is apparent from a plain reading of our marriage statutes that the legislature has not authorized same-sex marriages. Appellants argue that RCW 26.04.010 ² which authorizes marriages by 'persons of the age of eighteen years, who are otherwise capable' includes no requirement that marriage partners be limited to one male and one female and that the phrase 'who are otherwise capable' refers to the prohibitions of RCW 26.04.020--26.04.040 against certain marriages involving persons who are habitual criminals, diseased, insane, etc., but there is no prohibition against same-sex marriages. Appellants argue that the legislature has not defined the competency of marriage but only the competency of individuals seeking to marry; inasmuch as the appellants are both legally 'capable' of marriage, they argue state law permits them to marry each other. As the state points out, however, the statutory language of RCW 26.04.010 relied upon by the appellants merely reflects a 1970 amendment which substituted the word 'persons' for the prior references to 'males' and 'remales' to implement the legislature's elimination of differing age requirements for marriage by the respective sexes. Further, RCW 26.04.210, relating to the affidavits required for the issuance of a marriage license, makes reference to 'the male' and 'the female' which clearly dispels any suggestion that the legislature intended to authorize same-sex marriages. ³ The trial court correctly concluded that the applicable marriage statutes do not permit same-sex marriage.

Appellants next argue that if, as we have held, our state marriage laws must be construed to prohibit same-sex marriages, such laws are unconstitutional when so applied. In this context, we consider appellants' second assignment of error which is directed to the proposition that the state prohibition of same-sex marriages violates the ERA which recently became part of our state constitution. ⁴ The question thus presented is a matter of first impression in this state and, to our knowledge, no court in the nation has ruled upon the legality of same-sex marriage in light of an equal rights amendment. The ERA provides, in relevant part:

Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.

In seeking the protection of the ERA, appellants argue that the language of the amendment itself leaves no question of interpretation and that the essential thrust of the ERA is to make sex an impermissible legal classification. Therefore, they argue, to construe state law to permit a man to marry a woman but at the same time to deny him the right to marry another man is to construct an unconstitutional classification 'on account of sex.' ⁵ In response to appellants' contention, the state points out that all same-sex marriages are deemed illegal by the state, and therefore argues that there is no violation of the ERA so long as marriage licenses are denied equally to both male and female pairs. In other words, the state suggests that appellants are not entitled to relief under the ERA because they have failed to make a showing that they are somehow being treated differently by the state than they would be if they were females. Appellants suggest, however, that the holdings in Loving v. Virginia, 388 U.S. 1, 9, 87 S.Ct 1817, 18 L.Ed.2d 1010 (1967); Perez v. Lippold, 32 Cal.2d 711, 198 P.2d 17 (1948), and J.S.K. Enterprises, Inc. v. City of Lacey, 6 Wash.App. 43, 492 P.2d 600 (1971), are contrary to the position taken by the state. We disagree.

In Loving, the state of Virginia argued that its anti-miscegenation statutes did not violate constitutional prohibitions against racial classifications because the statutes affected both racial groups equally. The Supreme Court, noting that the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race,' held that the Virginia laws were founded on an impermissible racial classification and therefore could not be used to deny interracial couples the 'fundamental' right to marry. The California court made a similar ruling as to that state's anti-miscegenation law in Perez.

Although appellants suggest an analogy between the racial classification involved in Loving and Perez and the alleged sexual classification involved in the case at bar, we do not find such an analogy. The operative distinction lies in the relationship which is described by the term 'marriage' itself, and that relationship is the legal union of one man and one woman. Washington statutes, specifically those relating to marriage (RCW 26.04) and marital (community) property (RCW 26.16), are clearly founded upon the presumption that marriage, as a legal relationship, may exist only between one man and one woman who are otherwise qualified to enter that relationship. ⁶ Similarly although it appears that the appellate courts of this state until now have not been required to define specifically what constitutes a marriage, it is apparent from a review of cases dealing with legal questions arising out of the marital relationship that the definition of marriage as the legal union of one man and one woman who are otherwise qualified to enter into the relationship not only is clearly implied from such cases, but also was deemed by the court in each case to be so obvious as not to require recitation. See, e.g., In re Estate of Grauel, 70 Wash.2d 870, 425 P.2d 644 (1967); Davis v. Davis, 3 Wash.2d 448, 101 P.2d 313 (1940); Weatherall v. Weatherall, 56 Wash. 344, 105 P. 822 (1909). ⁷ Finally, the courts known by us to have considered the question have all concluded that same-sex relationships are outside of the proper definition of marriage. Jones v. Hallahan, 501 S.W.2d 588 (Ky.1973); Baker v. Nelson,291 Minn. 310, 191 N.W.2d 185 (1971); Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499 (1971). Appellants have cited no authority to the contrary.

Given the definition of marriage which we have enunciated, the distinction between the case presented by appellants and those presented in Loving and Perez is apparent. In Loving and Perez, the parties were barred from entering into the marriage relationship because of an impermissible racial classification. There is no analogous sexual classification involved in the instant case because appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. ⁸ As the court observed in Jones v. Hallahan, Supra, 501 S.W.2d at 590: 'In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.' Loving and Perez are inapposite.

J.S.K. Enterprises, Inc. v. City of Lacey, Supra, is also factually and legally dissimilar to the case at bar. In that case, this court held that a city ordinance which permitted massagists to administer massages only to customers of their own sex constituted discrimination on the basis of sex, prohibited by the equal protection clause of the fourteenth amendment to the United States Constitution, and also violated RCW 49.12.200, relating to the right of women to pursue any employment. We see no analogy between the right of women to administer massages to men and the question of whether the prohibition against same-sex marriages is unconstitutional. The right recognized in J.S.K. Enterprises, Inc. on the basis of principles applicable to employment discrimination has nothing to do with the question presented by appellants.

Appellants apparently argue, however, that notwithstanding the fact that the equal protection analysis applied in Loving, Perez and J.S.K. Enterprises, Inc. may render those cases distinguishable from...