Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


OLYMPIA—Washington Attorney General Bob Ferguson this week joined two friend-of-the court briefs in support of marriage equality in two landmark cases soon to be argued before the U.S. Supreme Court.

“Washington has a clear interest in supporting marriage equality and in ensuring the federal government respects marriages that are valid under Washington law,” said Ferguson. “I am proud that Washington played an active role in developing the strong arguments in these briefs to the U.S. Supreme Court supporting marriage equality for couples in Washington and across the country.”

Washington will join roughly a dozen other states in filing the two briefs this week. The first, filed by 13 states and the District of Columbia Thursday, supports the Ninth Circuit Court of Appeals’ decision in Hollingsworth v. Perry to strike down California’s Proposition 8, which outlawed same-sex marriage.  The second will be filed Friday in support of the Second Circuit Court of Appeals’ decision in U.S. v. Windsor, which found the federal Defense of Marriage Act (DOMA) to be unconstitutional. At this time, 15 states and the District of Columbia have joined but the total number of states on that brief will not be available until Friday.

In the Windsor case, the Internal Revenue Service denied Ms. Windsor a refund on federal estate taxes when her same-sex spouse died—a refund she would have received had her spouse been of the opposite sex. While the state of New York recognized the couple’s marriage, the IRS denied the refund under section 3 of DOMA. Section 3 declares that any time “marriage” or “spouse” appears in any federal law, it only applies to a marriage of a man and a woman.

The brief agrees with the Second Circuit’s ruling that DOMA violates the Equal Protection Clause of the U.S. Constitution by denying federal benefits to same-sex couples who are legally married under the laws of their state.

“This case has a direct impact on Washington families. Couples who are legally married in our state may find themselves in this exact situation—being denied important federal benefits,” Ferguson said. “This is fundamentally unfair, and we must stand up for the rights of the people of our state. Washington will have its voice heard in this critical debate.”

In 2009, the Washington State Legislature approved Senate Bill 5688, the “everything-but-marriage” bill. Under the measure, same-sex couples were granted the right to enter into domestic partnerships with all the legal rights and responsibilities of married couples, except that a domestic partnership was not a marriage.  Opponents garnered enough signatures to refer the measure to voters as Referendum 71, but voters ultimately affirmed these rights of same sex couples by a vote of more than 53 percent.

In 2012, the Legislature approved Senate Bill 6239, legalizing same-sex marriage. Once again, opponents garnered enough signatures to refer the measure to voters. Referendum 74 was approved by nearly 54 percent at the November election – making Washington the ninth state in the nation to legalize same-sex marriage.

In Hollingsworth v. Perry, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.  The brief argues that Proposition 8 violates the Equal Protection Clause because there is no rational basis for California to deny same sex couples the right to marry on an equal basis as opposite sex couples.

The U.S. Supreme Court will hear Hollingsworth v. Perry on March 26, 2013 and then take up U.S. v. Windsor on March 27, 2013. The U.S. Supreme Court typically issues a decision by late June when it adjourns for a summer recess.

The states joining the Perry brief include: Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Massachusetts, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington. The Attorney General of California filed a separate brief in support of equal marriage rights.

The states joining the Windsor brief include: California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and the District of Columbia.

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Janelle Guthrie, Communications Director, Attorney General Bob Ferguson, 360-586-0725