Digital Johnny, Real Johnny

Love, Marriage and Registration

With all this buzz about the Massachusetts Supreme Judicial Court's recent ruling that gays and lesbian's being barred from marriage violates the Mass. Constitution (and my shameful procrastination of studying for finals), I was wondering what kind of arguments were being used by both sides of the issues and what the courts were making of them. Here's a bit of what I found...

Apart from the 6 month stay of the decision (it took the Hawai'i state legislature just 4.5 months to pass their constitutional amendment limiting marriages to opposite-sex couples), the majority's opinion is a great piece of rational adjudication dedicated to the protection of constitutional rights and basic human dignity. I know that these things are long and boring and that you may not have read the decision, so here are (more than) a few good bits:

"The question before us is whether, consistent with the Mass. Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Mass. Const. affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens... [The Commonwealth] has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."

"Neither [moral or ethical] view answers the question before us. Our concern is with the Mass. Const. as a charter of governance for every person properly within its reach. 'Our obligation is define the liberty of all, not to mandate our own moral code.'" Lawrence v. Texas (2003).

"[In Lawrence], the [Supreme] Court affirmed that the core concept of common human dignity protected by the Fourteenth Amended to the U.S.Const. precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one's choice of an intimate partner."

"Without the right to marry--or more properly, the right to choose to marry--one is excluded from the full range of human experience and denied full protection of the laws for one's 'avowed commitment to an intimate and lasting human relationship.' Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual's right to marry against undue government incursion. Laws may not 'interfere directly and substantially with the right to marry.'"

"Individuals who have the choice to marry each other and nevertheless choose not to may properly be denied the legal benefits of marriage. But that same logic cannot hold for a qualified individual who would marry if she or he only could."

As in the California Supreme Court and United States Supreme Court decisions that a statutory bar to interracial marriage violated the Fourteenth Amendment, "In this case... a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance--the institution of marriage--because of a single trait: skin color [in those cases], sexual orientation here... history must yield to a more fully developed understanding of the invidious quality of the discrimination."

"The Department [of Health] posits three legislative rationales for prohibiting same sex couples from marrying:
(1) The traditional concept that marriage's primary purpose is procreation. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. [Mass. marriage law] contains no requirements that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition or marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.... it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non [the indispensable condition] of civil marriage.
(2) Confining marriage to opposite-sex couples ensures that children are raised in the 'optimal' setting. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy... The "best interests of the child" standard does not turn on a parent's sexual orientation or marital status... The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the "optimal" child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be "excellent" parents... Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized."
(3) The marriage restriction is logical because the Court logically could assume that same-sex couples are more financially independent than married couples and thus less needy of public material benefits, such as tax advantages, or private material benefits, such as employer-financed health plans that include spouses in their coverage. An absolute statutory ban on same-sex marriage bears no rational relationship to the goal of economy. First, the department's conclusory generalization... ignores that many same-sex couples, such as many of the plaintiffs in this case, have children and other dependents (here, aged parents) in their care. The department does not contend, nor could it, that these dependents are less needy or deserving than the dependents of married couples. Second, Mass. marriage laws do not condition receipt of public and private financial benefits to married individuals on a demonstration of financial dependence on each other; the benefits are available to married couples regardless of whether they mingle their finances or actually depend on each other for support.

Taking a quick look at rights of same-sex couples in California, I was surprised to find out that, with the passage of Assembly Bill 25 in 2001, couples who are registered as domestic partners with the state, like spouses, have the ability to:

* Adopt a partner's child using the stepparent adoption procedure;
* Be appointed as administrator of decedent's estate, in the same manner and priority as a spouse;
* Use employee sick leave to attend to an illness of his or her partner or his or her partner's child;
* Receive unemployment insurance benefits if he or she leaves employment to join his or her domestic partner at a remote location to which commuting to work is impractical and a transfer of employment is not available;
* File a claim for disability benefits for his or her partner;
* Make health care decisions for an incapacitated partner;
* Recover damages for negligent infliction of emotional distress and wrongful death.

AB 25 amended the definition of "domestic partners" to read:
California Family Code Section 297--
(a) Domestic partners are two adults who have chosen to
share one another's lives in an intimate and committed relationship
of mutual caring.
(b) A domestic partnership shall be established in California when
all of the following requirements are met:
(1) Both persons have a common residence.
(2) Both persons agree to be jointly responsible for each other's
basic living expenses incurred during the domestic partnership.
(3) Neither person is married or a member of another domestic
partnership.
(4) The two persons are not related by blood in a way that would
prevent them from being married to each other in this state.
(5) Both persons are at least 18 years of age.
(6) Either of the following:
(A) Both persons are members of the same sex.
(B) One or both of the persons meet the eligibility criteria under
Title II of the Social Security Act as defined in 42 U.S.C. Section
402(a) for old-age insurance benefits or Title XVI of the Social
Security Act as defined in 42 U.S.C. Section 1381 for aged
individuals. Notwithstanding any other provision of this section,
persons of opposite sexes may not constitute a domestic partnership
unless one or both of the persons are over the age of 62.
(7) Both persons are capable of consenting to the domestic
partnership.
(8) Neither person has previously filed a Declaration of Domestic
Partnership with the Secretary of State pursuant to this division
that has not been terminated under Section 299.
(9) Both file a Declaration of Domestic Partnership with the
Secretary of State pursuant to this division.

So, I guess the lesson I learned tonight isn't that prohibiting same-sex marriage violates fundamental legal and human rights and has no rational basis (I knew that), or that Mass. will probably have the time to make the recent decision moot (figures...), but that, being in a hetero relationship, I can't even register to have the rights of a domestic partner until I'm 62 years old but same-sex couples can register to get these rights as long as they're over 18. Of course I can technically choose to marry, but god knows when that'll become a real option for me. In the mean time, it disturbs me to know that neither Aaron or I have any rights over each other's property or medical treatment. So, although I often feel guilty for squandering my right to choose to marry when others are denied that right for some bullshit reason, I'm now jealous of the ability of young, same-sex couples, at least those in California, to be *real* domestic partners.

California Domestic Partner Registration

Posted by Kristina at November 22, 2003 12:39 AM