Nancy Polikoff

The California Marriage Win -- Reason to celebrate; Reason to pause

Filed By Nancy Polikoff | May 15, 2008 1:30 PM | comments

Filed in: Marriage Equality, The Movement
Tags: California, California State Supreme Court, gay marriage, law, LGBT families, marriage, marriage equality, same-sex marriage

It's an auspicious day for my first Bilerico post! The win in California is a huge civil rights victory. Shannon Minter, legal director of the National Center for Lesbian Rights, deserves kudos for spearheading the litigation that resulted in today's 4-3 ruling that banning gay and lesbian couples from marrying violates the state's constitution.

So four years - almost to the day - since couples began marrying in Massachusetts, the California Supreme Court has handed the marriage equality movement its biggest win yet. Massachusetts has refused marriage licenses to most out-of-state couples; California won't do that. When San Francisco Mayor Gavin Newsom authorized same-sex marriage in February 2004, the streets outside City Hall filled with couples from around the country. Expect a repeat --- multiplied many times over --- beginning 30 days from now.

But a bit of caution before going overboard with celebrations. There's the inevitable ballot fight that will give Californians the chance to overturn the court's ruling by amending the state constitution, the way 26 other states have done. But I'm thinking of another reason to pause: giving same-sex couples access to the "special rights" of marriage has a downside for those in the LGBT community who don't marry, and we have four years of marriage in Massachusetts to prove it.

Some employers there no longer offer domestic partner benefits to their employees; it's marriage or nothing. So much for making marriage a choice for gay and lesbian couples.

And the Massachusetts courts can use marriage to decide who's a parent. In one case a woman identified in court papers as "T.F." gave birth to a child she and her partner "B.L." planned together. The child was conceived through unknown donor insemination with the consent of B.L. and the understanding that B.L. would also be the child's parent. The couple's relationship ended before the child was born, and the court refused to order B.L. to pay child support. Had T.F. and B.L. been married, the law would have clearly required B.L. to support the child she participated in creating. So much for the best interests of children.

The visibility of the marriage issue and the emphasis it has received obscures the issue raised by these examples: marriage is the wrong dividing line for deciding whether a relationship counts. The same-sex couples who don't marry, and the LGBT people who don't have romantic partners but do have relationships that matter to them, also deserve economic security and emotional peace of mind, through paths I explore in my book, Beyond (Straight and Gay) Marriage.

I'm also heartened that the California ruling suggests that the state could eliminate the name "marriage" for everyone. I'm all for that! Marriage carries the baggage of exclusion, subjugation of women, and religion. As long as it exists, same-sex couples shouldn't be denied it, but by all means let's get the word out of our laws for everyone!

So celebrate equality for same-sex couples who want to marry today! But let's not overlook justice for all of us - in places that allow marriage and in those that don't.


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LOL - That's great HoGB. That made me smile even bigger than the ruling did.

This is HUGE.

Great first post Nancy!

There is so much to discuss but all I want to do is celebrate!

Great first post!

Punch through your target, or something along those lines. We can't forget the who-knows-what-percentage of queers who don't get married!

Bill Perdue Bill Perdue | May 15, 2008 3:25 PM

Wonderful news. And its gets better because it’s a precedent made even more powerful by the standing enjoyed by the California Supreme Court in legal circles. The courts and legislators are erratic and undependable at best but they’re also very political and when they’re faced with a mass movement that won’t take no for an answer they occasionally rule to placate the movement.


The justices of the California Supreme Court are almost entirely Republican appointees. So much for the argument that we have to vote Democratic (sic) to win in court. We just have to convince courts and lawmakers that we mean business. The big winners here are tens of thousands of California GLBT activists and their allies who fought long and hard for same sex marriage. We owe them all a debt of gratitude and a big hug.

I'm also heartened that the California ruling suggests that the state could eliminate the name "marriage" for everyone. I'm all for that! Marriage carries the baggage of exclusion, subjugation of women, and religion. As long as it exists, same-sex couples shouldn't be denied it, but by all means let's get the word out of our laws for everyone!

Right on, sister!

Everything you've said is on point. Marriage remains a "special rights" institution. Let's be honest, most of the LGBT's that are getting hitched are doing so for cosmetic reasons, not to judge, just being realistic.

So much for the argument that we have to vote Democratic (sic) to win in court.

With all due respect Bill, this marriage ruling was decided by a 4-3 margin and the deciding vote was cast by Justice Carlos Moreno, an appointee of survey says, DEMOCRATIC Governor Gray Davis.

So yes, you DO have to vote for Democrats if you wish to have social justice rulings go your way. There a social justice compassion void among conservatives and their judicial appointees and they tend to rule for the status quo and big business far more than they do for the average American fighting the system.

We have prime examples of that at the federal level in which we continue to lose cases by 5-4 margins because REPUBLICANS got to select judges at the times those slots came open. The Supreme Court and the federal judiciary is a major reason why I want a Democratic president taking the oath of office on January 20.

Bill Perdue Bill Perdue | May 15, 2008 7:39 PM

With all due respect, Monica, that's not the whole picture. The idea that the best judges are those appointed by Democrats isn’t borne out by the facts.

The California same sex marriage decision was decided by a majority ruling of three Republicans and the lone Democrat on the court. Chief Justice George, a Republican, was first appointed to the bench by Ronald Reagan in 1972. The first judicial appointment of Justice Moreno, the only Democrat, was by Gov. George Deukmejian, a rightist. Justice Kennard, a Republican, was also appointed by Deukmejian. Justice Werdegar is a Republican.

Bill Clinton, the man behind bigot laws like DOMA and DADT appointed Karen Nelson Moore to the US Sixth Circuit Court of Appeals in 1995. Moore consistently votes for the rights of christianists to oppress GLBT folk. Senate Democrats led by Feinstein of California worked with Republicans to approve gaybashing Bush nominees for the US 7th Circuit Court of Appeals and as US Attorney General.

What that proves is that some Republican judges get better and some Democratic judges are no good. The best way to influence the courts and the congress is to continuously expand struggle for full equality and not deflect our energy into election snake oil sellers and backstabbers.

Most politicians are very wealthy and the rest are in politics to get that way. That’s the American political bottom line. The rest is hoopla and snake oil sales. Democrats and Republicans all appoint judges whose first duty is to protect wealth and privilege, and they don’t, as you pointed out, take kindly to laws or lawsuits that award large claims against bigots, christianist cults and other bigots.

The courts are unreliable and unpredictable but big wins like this one and the US Supremes decision on sodomy are welcome indeed. The precedent set by the California Supremes is all that much better because of their standing in national legal circles. With few exceptions legislators are jurists are at best fair weather friends. But both are very political, i.e., ambitious and greedy. US history abounds with examples of what happens when they’re faced with a mass movement that won’t take no for an answer. They sometimes, like today, placate it. (The exception is Barney Frank. He may not understand ‘placate’ but he does know the value of having a sharp knife on hand when he sees us with our backs turned.)

What a way to start blogging on the Project, Nancy. Do you want to quit and come back next week? Maybe something great will happen then too! *grins*

Robert Ganshorn Robert Ganshorn | May 16, 2008 2:40 AM

Nancy, Thank you for your first posting.

One of my many problems with the word 'Marriage' was that the institution had nothing whatsoever to do with love between people until very recent times. I am glad and expecting that *many judges* take note of this ruling regardless of party appointment.

I have great expectations that all of us are capable of enlightenment and improvement. Perhaps, we are even capable of positive expectations of one another, and a lack of ill mannered name calling.

Bill,
I grew up in Texas where partisan conservative judges appointed by Republicans are the rule, not the exception. We're also talking about a Texas Republican party which is more conservative and radical than the national one as well.

So I don't share your faith in the abilities of GOP appointed judges to do their jobs impartially on civil rights cases. I'll take my chances with a DEMOCRATIC appointed judge moreso than a Tepublican one any day.

Anna Rose | May 16, 2008 8:35 AM

RE: "Some employers there no longer offer domestic partner benefits to their employees; it's marriage or nothing. So much for making marriage a choice for gay and lesbian couples."

But the whole point for the creation of domestic partner benefits has been that gay couples COULDN'T get married and therefore get the company benefits bestowed on married couples; as such, DP benefits took care of that (although couples are severely taxed for it). Now that couples can get married, there is much less reason to offer DP benefits to gay couples because the company benefits are now available to because those couple CAN now marry. DP benefits have now less relevance at companies in certain states.

Anna Rose-
You're mistaken. The whole point of creating domestic partner benefits was not requiring marriage! The first plans (1982) were for same-sex and different-sex unmarried couples. It was not until 1991 that an employer created benefits for same-sex couples only, basing that on the idea that same-sex couples couldn't marry. I describe this history in my book, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW (www.beyondstraightandgaymarriage.com). The gay rights movement was once firmly set within a larger movement of support for diverse families.

your boohoo about the couples who dont wed is silly. are you now arguing for special rights? we want equality. that includes making the commitment, walking the walk. if we want our relationships to be recognized, then we need to follow the rules.

Bill Perdue Bill Perdue | May 16, 2008 12:19 PM

Good Morning, Monica. I’m slowly recovering from a night of celebrating. I can almost see.

I guess our big difference is that I don't trust ANY politician or judge, Democrat or Republican, to give a rat's ass about us. They vote and rule in our favor when we build a movement they have to come to terms with. It’s the movements that are the key to change, not electing candidates who, in practical terms, are virtually identical.

I trust the power of mass movements. I've helped organize them and seen them work. Ending wars (on our terms), building unions, defeating bigot laws like the anti-GLBT Briggs Initiative in California, etc.

We’re all going to get another chance to see a mass movement accomplish real change. The California Supremes’ decision is going to whet the appetites of GLBT communities, as will the renewed fight for ENDA and hate crimes laws. No matter who wins in November the war will continue, the assault on our standard of living will continue, and the bigots aren’t going away anytime soon. By the time the war is ended on our terms we'll all have seen how a mass movement works and what real power is.

Gary 47- That's one point of view, but here's another way to think about it. Marriage isn't much of a commitment -- anyone can walk away-- that's what no fault divorce got us, and it started in California. I believe in rewarding REAL commitment, so who cares if the couple is married or not? I hope you'll check out my book; the introduction is on line on the website and it will give you an idea of where I'm coming form. Harvey Milk's surviving partner got workers comp death benefits when Harvey died. They weren't married, of course (1978! domestic partnership hadn't been invented yet!). The test in California is economic dependency/interdependency; marriage isn't required. Good rule! Should be the rule everywhere. The point of the benefit is to compensate for the loss of an economic provider, and marriage is irrelevant to that.

Gary 47- That's one point of view, but here's another way to think about it. Marriage isn't much of a commitment -- anyone can walk away-- that's what no fault divorce got us, and it started in California. I believe in rewarding REAL commitment, so who cares if the couple is married or not? I hope you'll check out my book; the introduction is on line on the website and it will give you an idea of where I'm coming form. Harvey Milk's surviving partner got workers comp death benefits when Harvey died. They weren't married, of course (1978! domestic partnership hadn't been invented yet!). The test in California is economic dependency/interdependency; marriage isn't required. Good rule! Should be the rule everywhere. The point of the benefit is to compensate for the loss of an economic provider, and marriage is irrelevant to that.

Bill Perdue Bill Perdue | May 16, 2008 2:50 PM

Nancy, are you familiar with the civil union arrangements in the UK?

I’ve been watching the debate there for over a year and many same sex marriage activists from England and the EU as a whole are opposed to them, even though they're said to offer roughly equal benefits, because it’s a 'separate but equal’ situation. They prefer the Dutch and Spanish models.

Yes. It's called civil partnership in the UK (I love that name...think we should replace "marriage" with "civil partnership" for all). I don't like a separate institution for same-sex couples because it is a mark of second-class status. What's the point of denying the same word straight couples have other than to mark same-sex couples as inferior??? Of course that still begs the question about the legal significance of marriage, and in most European countries it's not the bright dividing line that it is here; in Canada, where gay couples can marry, NO ONE, gay or straight, HAS TO marry for rights or benefits. It really is a CHOICE there. We seem so far from that model. I've got a chapter in my book on how much marriage means less in other countries and how we should follow that lead.

Robert,
I feel you. I'm happy for the GLB community.

I grew up with great Democrats representing me like the late Barbara Jordan and the late Mickey Leland representing me who not only were far sightet leaders, they were great examples of morally centered leadership that thought globally and acted locally.

So I'm not one to dismiss all politicians and judges as crooked unless I have irrefutable evidence of it.

The California court ruing is a rarity on a GOP dominated appointee court for a civil rights case. If you're a transperson you'll see the other side of justice GOP style. Ask Christie Lee Littleton how fair and impartial a GOP dominated court it.

But at the same time, I live in the consewrvative 6th district and I've seen some surprising rulings on GLBT issues that have come out of the minds of 'strict constitutionalist' judges.

I also 0have to say that the Lawrence v. Texas case did get through the Texas courts on it's way to be decided by the Supremes. But I'd rather not have to take our chances on arguing cases before conservative judges on a regular basis. Based on my people's history you lose far more of those than you win.


Robert Ganshorn Robert Ganshorn | May 17, 2008 2:05 AM

Thank you Monica, who didn't love Barbara Jordan, other than you know whom above. ;)

Considering where we (group, all of us) started, and what we have been through, and who is still being abused, the progress is really amazing, but inadequate to our present needs. Just as we celebrate California Patricia Nell Warren's article above on rape in South Africa brings us back to the cold realities. And yet, when I remind people to, for heaven's sake, be careful and aware of your surroundings, I am told I am blaming the victim.

Our friend is right about Spain where our brothers and sisters were once subject to horrible laws during the time of the facist Franco, and now amazingly has the most progressive laws in Europe, but now we must work to change hearts as well as minds.

PhoenixRising | May 18, 2008 5:42 PM

Nanci, I'm familiar with all the arguments in your book, I just think they're specious. It's disappointing that your first post had to restate your argument that marriage is the wrong goal, instead of congratulating those who chose it as their goal many years ago and explaining why reasonable people might do such a thing.

While you're right that at one time the movement for gay equality had 'support diverse family forms' as a goal, there are reasons that marriage has been treated as a priority.

They have to do with the achievability of marriage equality, as well as the interest among lesbian and gay couples in being taxed like our neighbors exceeding our interest in participating in a family law revolution.

Many years ago, when the Hawaii case was won, those of us who wanted to protect our partners, and the children of our relationships, had had no realistic prospect of getting the goods available to our straight brethren. The string of progress since then leads to the conclusion, equal access to marriage is both winnable and worth fighting for.

The goal of re-crafting family law so that it is less sexist and more like European law, on the other hand, hasn't moved the needle of public interest or progress. The decision itself contemplates the remedy you're asking for, and discards it as legally and politically impossible, for whatever that's worth.

So, while I enjoy reading your hypothesizing, those of us who need to know that we're not leaving our kids a tangle of inheritance problems will be over here in our corner, breaking through the wall of resistance against equality for our particular families.

Improving family courts' (and other governmental agencies') treatment of all kinds of families is a great idea. Someone ought to get right on a project that outlines a realistic plan to achieve that goal--maybe our straight brothers and sisters could get cracking, because I'm busy this decade.

Meanwhile, your anecdote shows only that ignorance is a form of poverty that is always with us. Even given access to all the protections that the state has to offer, there will always be those who believe that bad outcomes happen to other people and therefore they don't need protection.

That couple created a human life before making a (revokable, but enforced by the state) commitment to each other's welfare, and that makes them irresponsible dolts. It's not an argument against access to marriage that those particular dolts didn't exercise their right to a predictable outcome under a known set of rules. No relocation of the goalposts will create a dolt-free society, so it's hard to see what their child's avoidable future discomfort has to do with marriage equality.

It's analagous to an argument for universal health care supported by a story about an accident victim who chose not to buy insurance she could have afforded. Universal access to health care is a human right, I believe, but that doesn't give me the right to refuse to buy insurance and demand unpaid care while I advocate for that right being extended to all.

Overall, I'm always fascinated to read your ideas, in part because they hit me as dispatches from another galaxy, one in which it's all theoretical.

"your boohoo about the couples who dont wed is silly. are you now arguing for special rights? we want equality. that includes making the commitment, walking the walk."

you prove her point exactly. marriage is the special right, and doesn't benefit the majority of committed-family households in America.

ps- our gay groups agree!
http://www.ebar.com/news/article.php?sec=news&article=1009