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Thursday, May 15, 2008
Today, the California Supreme Court decided that the equal protection clause of the state Constitution requires that marriage, if it is offered to straights by the government, must be offered to gays. I am sure there will be plenty of mostly predictable commentary about the substance of the decision. Personally, I find this decision to be less compelling than a similar decision in Vermont, which held that the state was required to offer civil unions to gays and lesbians. Essentially, while I know why the word "marriage" is important to gays (and it would be important to me if I were gay and wanted to hold a commitment ceremony with my partner), the equal protection issue with respect to gay marriage arises out of the fact that straight people get favorable treatment from the government that is denied to gays and lesbians. Indeed, understanding this point is crucial to the gay marriage issue.

If marriage were nothing more than what religious conservatives claim it is, i.e., a religious sacrament and a traditional institution and ceremony for men and women to enter into, their arguments might make some sense. Marriage could be seen as for 1 man and 1 woman in the same sense that bar mitzvahs are for 1 teenage Jew.

But the problem is that the state attaches a bunch of benefits to married couples. These benefits range from things like automatic hospital vistiation and inheritance to tax breaks to one of the most important benefits possible, the right to bring one's spouse into the country and to adjust his or her immigration status. All of these benefits are denied to gays and lesbians. Only some can be replicated through contracts and legal documents, e.g., inheritance.

Further, private industry is also authorized to discriminate on the basis of marital status. Thus, insurance companies can offer coverage to one's spouse but not to one's partner, for instance. An employer can allow an employee time off to care for an ailing spouse but refuse it to a gay employee caring for an ailing partner. Et cetera.

Thus, the lack of gay marriage is like passing a thousand little discriminatory laws against gays and lesbians. (Indeed, this is true even as states legalize gay marriage, civil unions, and domestic partnerships, because many of these issues are governed by federal law, and the federal government doesn't recognize gay marriages even from states that permit them.)

I am afraid that a decision like the California Supreme Court's will miss this point. I am all for gays being able to "marry" as opposed to entering a "civil union" or forming a "domestic partnership". But while I can see that issue's importance to gays, it isn't nearly as important as creating a union for gays that entitles them to all the benefits that straights have, i.e., an end not only to state discrimination but to federal discrimination against gays and lesbians. Does today's decision get us closer to that point? Not necessarily. Indeed, it is quite possible that, after the Court relied on the state legislature's passage of generous domestic partnership benefits in holding there was no basis for withholding the term "marriage" to the unions, other states and the federal government may shy away from granting any benefits to gay and lesbian couples, lest a court later adopt the California Supreme Court's ruling.

But I have another point about this issue. A lot of the commentary condemning the decision is sure to come from out of state. We are likely to hear tired conservative arguments about how unelected judges (never mind that California Supreme Court judges face retention elections) are imposing their will on Californians (never mind that California's elected legislators twice passed gay marriage bills, and while they were vetoed by the Governor, he nonetheless supports today's court ruling).

I have one thing to say to those commentators. This is none of your business. As long as the federal Defense of Marriage Act remains law, this decision will not prevent homophobic bigots in other states from outlawing gay marriage. Nor will they be required to recognize California gay marriages in homophobic states.

Accordingly, whether we do this by court decision, legislation, or vote of the people is irrelevant to you. We did it. Just like we legalized medical marijuana, which has also been criticized by conservative outsiders. (Indeed, conservatives are attacking Barack Obama for the sin(?!?) of arguing that California should be able to enforce its own marijuana laws without federal interference.)

Conservatives believe in federalism, remember? If and when there is a challenge to federal marriage laws, commentators in all 50 states can certainly speak up. But what we do in our state to our laws is not the concern of bluenoses in more conservative parts of the country. So leave us alone.

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