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Bob Ferguson

AGO 1988 No. 30 -
Attorney General Ken Eikenberry


That portion of RCW 26.04.210 which requires applicants for marriage licenses to make and file with the county an affidavit showing they are not afflicted with any contagious venereal disease is still enforceable, and was not repealed or amended by chapter 206, Laws of 1988 (an act relating to AIDS and other sexually transmitted diseases).

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                                                               December 14, 1988

Honorable Seth R. Dawson
Snohomish County Prosecuting Attorney
Mission Building
3000 Rockefeller Avenue
Everett, WA 98201

Cite as:  AGO 1988 No. 30                                                                                                                

 Dear Mr. Dawson:

             You requested our opinion of the effect of chapter 206, Laws of 1988 on the provisions of RCW 26.04.210.  We paraphrase your question as follows:

             Does chapter 206, Laws of 1988 repeal by implication the portion of RCW 26.04.210 which requires applicants for marriage licenses to make and file with the county auditor an affidavit showing they are not afflicted with any contagious venereal disease?

 Our answer to your question is "no".


             RCW 26.04.210 provides in part:

             The county auditor, before a marriage license is issued  . . . shall require each applicant therefor to make and file in his office upon blanks to be provided by the county for that purpose, an affidavit showing that they are not afflicted with any contagious venereal disease  . . .

              [Orig. Op. Page 2]]

             This requirement has been in effect since 1909.  See Laws of 1909, ch. 174, § 3, p. 634.  The only significant amendment to take place over the years occurred in 1973, when both applicants for a license became subject to the requirement instead of only the male applicant.  See Laws of 1973, 1st Ex. Sess., ch. 154, § 29, p. 1135.

             Prior to 1988 legislation, RCW 70.24 [chapter 70.24 RCW] addressed the control and treatment of venereal diseases.  RCW 70.24.010 provided:

             Syphilis, gonorrhea and chancroid hereinafter designated as venereal diseases are hereby declared to be contagious, infectious, communicable and dangerous to the public health.  It shall be unlawful for anyone infected with these diseases or any of them to expose another person to infection.

 SeeLaws of 1919, ch. 114, § 1, p. 277.  Through RCW 70.24 [chapter 70.24 RCW] and RCW 26.04.210, the Legislature identified a need for protection of the public health and a point at which steps could be taken to promote such protection.

             Chapter 206, Laws of 1988 (the "AIDS act") was a culmination of months of study by a governor's task force consisting of members of the public, doctors and lawyers, and legislators.  Following the issuance of the task force's interim report in December 1987, the Legislature fashioned legislation incorporating many of the recommendations of the task force.  The AIDS act amended or expressly repealed most sections of RCW 70.24 [chapter 70.24 RCW], added new sections, and amended other RCW chapters.  The AIDS act did not specifically address RCW 26.04.210, the marriage license provision referred to above.

             One of the changes made by the AIDS act was to substitute the term "sexually transmitted disease" for the term "venereal disease" in RCW 70.24 [chapter 70.24 RCW].  Section 101 of the AIDS act defines the term "sexually transmitted disease".  The act directs the Board of Health to include in the roster of sexually transmitted diseases those diseases previously designated as venereal diseases (gonorrhea, syphilis, and chancroid) and to add other diseases, including AIDS.

             Another area in which the AIDS act has a major impact is in the privacy to be accorded persons with sexually transmitted diseases.  Section 901 of the AIDS act states in part:

             The legislature declares that sexually transmitted diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state.  The legislature finds that the incidence of sexually transmitted diseases is  [[Orig. Op. Page 3]] rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death.  The legislature further finds that sexually transmitted diseases, by their nature, involve sensitive issues of privacy, and it is the intent of the legislature that all programs designed to deal with these diseases afford patients privacy, confidentiality, and dignity. . . .

             Consistent with the declared legislative intent to protect the privacy of persons with sexually transmitted diseases, the Legislature listed those circumstances under which disclosure of information regarding such diseases may be compelled and to whom such information may be disclosed.  Section 904 states in part:

                         (1) No person may disclose or be compelled to disclose the identity of any person who has investigated, considered, or requested a test or treatment for a sexually transmitted disease, except as authorized by this chapter.

                         (2) No person may disclose or be compelled to disclose the identity of any person upon whom a test for a sexually transmitted disease is performed, or the results of such a test or any information relating to a diagnosis of or treatment for a sexually transmitted disease in a manner which permits identification of the subject of the test, diagnosis, or treatment except to the following persons:  [list enumerated].

 The enumerated list of circumstances under which disclosure of information may be compelled and the persons to whom such information may be disclosed does not, in the AIDS act, include the circumstance of submitting an application for a marriage license to a county auditor.

             The Legislature continues to recognize the grave public health concerns associated with venereal diseases, now called sexually transmitted diseases, and, in fact, expresses those concerns more urgently than under prior law.  In addition, however, the Legislature now expressly intends that the privacy of persons with such diseases be given protection.  This intent was not evident in the former version of RCW 70.24 [chapter 70.24 RCW].

             Given the above background, we return your inquiry:  Do the confidentiality provisions of the AIDS act, chapter 206, Laws of 1988, repeal by implication the requirement in RCW 26.04.210 that marriage license applicants make an affidavit stating they are free from venereal disease?  Implied repeals of statutes are  [[Orig. Op. Page 4]] disfavored by the Washington courts.  Paulson v. County of Pierce, 99 Wn.2d 645, 664 P.2d 1202 (1983).  The disinclination to repeal by implication is especially acute when, as here, a later act contains a schedule of statutes repealed and the schedule does not include the statute under consideration.  Id.;see Laws of 1988, ch. 206, § 921, p. 972.  An implied repeal will be found only where

             (1) the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede prior legislation on the subject; or (2) the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot be reconciled and both given effect by a fair and reasonable construction.

 Paulson, 99 Wn.2d at 650; In re Chi-Dooh Li, 79 Wn.2d 561, 563, 488 P.2d 259 (1971).

             We conclude the AIDS act and the provision of RCW 26.04.210 in question can be reconciled such that both statues can be given effect by a fair and reasonable construction.

             First, even though RCW 26.04.210 refers to an affidavit regarding "venereal diseases" and the AIDS act refers to "sexually transmitted diseases", we assume for purposes of our analysis that those two terms are interchangeable.  The common dictionary definition of "venereal disease" is "any of several contagious diseases, such as syphilis and gonorrhea, contracted through sexual intercourse."  American Heritage Dictionary 1341 (2d college ed. 1982).  This definition is compatible with the definition of "sexually transmitted disease" in section 101(13) of the AIDS act.

             Given the assumption that the two terms are interchangeable, we must then examine whether complying with the marriage license statute would violate the AIDS act.

             As earlier stated, the Legislature declared, in enacting the AIDS act, that "sexually transmitted diseases, by their nature, involve sensitive issues of privacy, and  . . . all programs designed to deal with these diseases [should] affordpatients privacy, confidentially, and dignity."  Laws of 1988, ch. 206, § 901, p. 960 (emphasis added).  Section 904 specifically describes the confidentiality requirements, stating no one may be compelled to disclose information about sexually transmitted disease testing, treatment, or diagnosis.  Laws of 1988, ch. 206, § 904(1), (2), p. 962.

             The affidavit requirement in RCW 26.04.210 is merely a condition on the performance of a voluntary act; therefore, the  [[Orig. Op. Page 5]] county auditor is not "compelling" disclosure of information.  Further, the marriage license statute does not require applicants to disclose sexually transmitted disease information if the applicant indeed has a sexually transmitted disease.  The marriage license statute requires applicants to state they are not afflicted with disease.  This, therefore, is consistent with the stated legislative intent of the AIDS act that sexually transmitted disease "patients" be afforded privacy; persons free from disease cannot be considered sexually transmitted disease "patients".

             We doubt the Legislature intended to extend privacy so far as to eliminate the long-standing and legitimate requirement that marriage license applicants be free from venereal or sexually transmitted diseases.  While the right to marry is a fundamental right, the state may legitimately impose reasonable restrictions on that right to protect important state interests.  Levinson v. Horse Racing Comm'n, 48 Wn. App. 822, 740 P.2d 898 (1987).  Requiring applicants to be free from venereal disease is one such important state interest.  SeeZablocki v. Redhail, 434 U.S. 374, 392, 54 L. Ed. 2d 618, 634, 98 S. Ct. 673 (1978) (Stewart, J., concurring).  Because the AIDS act and this provision of the marriage license statute are both plainly aimed at the goal of minimizing the spread of sexually transmitted diseases, we conclude the Legislature intended both statutes to operate.

             Interestingly, the Governor's Task Force on AIDS considered a proposal that would have amended the marriage license statute.  Governor's Task Force on AIDS,Interim Report 81-82 (1987).  The proposal was rejected.  We conclude from this that even though the Legislature had the marriage license statute specifically brought to its attention during consideration of the AIDS act, it chose to leave the marriage license statute intact.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General