November 22, 2003

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
(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
(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

0) $paginate_current_page = 0; $paginate_sections = array( 0 ); $paginate_top_section = $paginate_sections[$paginate_current_page-1]+1; $paginate_bottom_section = $paginate_sections[$paginate_current_page]; } else { $paginate_top_section = 1; $paginate_bottom_section = 0; } $paginate_self = '&' . $_SERVER['QUERY_STRING'] . '&'; $paginate_self = preg_replace("/&page=[^&]*&/", "&", $paginate_self); $paginate_self = substr($paginate_self, 1, strlen($paginate_self) - 1); if($paginate_self == '&') $paginate_self = ''; else $paginate_self = htmlentities($paginate_self); $paginate_self = basename($_SERVER['PHP_SELF']) . "?${paginate_self}page"; ?> Posted by Kristina at November 22, 2003 12:39 AM

So you're saying that domestic partnership is not a separate but equal institution as marriage because marriage--for young domestically partnered opposite-sex couples--has a stigma attached to it?

Posted by: cody at November 22, 2003 12:49 PM

So why not just get married?

Posted by: sean at November 22, 2003 02:22 PM

I don't really know what I'm saying... obviously domestic partnership is not equal to marriage in that it grants far fewer rights, benefits and obligations, but as someone who's not ready for "marriage" but is in a committed, long-term relationship, I'd like to have those domestic partner rights, in case anything should happen to either one of us. Of course, a will could cover those kinds of issues, but it seems kinda morbid and even paranoid to make a will at my age, esp. since I have no real assets or property. I wouldn't say that marriage has a stigma attached to it, but it seems pretty heavy and even dangerous to me, since I wouldn't say I've had the best examples of marriages in my life... perhaps I'll feel differently in years to come and get over my fears. I think the only real point I was trying to make (apart from how much I liked the Mass. decision) was that I was surprised that, under the statute, opposite-sex couples can only be "domestic partners" if one/both is over 62 years old, since I thought I was a "domestic partner" but it turns out I'm just a "cohabitant".

Posted by: Kristina at November 23, 2003 02:03 AM

the rights and benefits of marriage (and domestic partnership, for that matter) don't just arise from being in a committed, long-term relationship. they arise from the partners entering into a contract with each other and the state to stay with each other until they die, or at least not to leave each other without going through a complicated legal process. i'm in favor of commonlaw marriage laws (if living together for seven or ten years isn't a manifestation of an intent to stay with each other forever, i don't know what is), but i have no problem with the state limiting automatic benefits to people who have sealed the deal. especially considering that, as kristina said, there are things like wills and insurance policies that can achieve the financial results. and i'd imagine there's some kind of consent process to grant medical visitation, though i can't be sure. i don't think that people who can (theoretically) walk out the door at any moment shoud have the same rights as people who are committed for life.

and if the response is "but we ARE committed for life!", my response is, "then why not get married?"

Posted by: holohan at November 23, 2003 10:20 AM

In re: medical visitation, I'm pretty sure that a living will would take care of that, similar to how it establishes a DNR (do not resucitate) order in the event the person is permanently incapacitated.

And I'm sure that Matt and I are biased indelibly, but I agree with him completely. There is a huge difference between living with someone and being married to someone. When someone has made a legal, binding commitment to you, it is much different than just sharing life together until someone decides they're done.

Posted by: meli at November 23, 2003 10:25 AM

Great... like I didn't feel enough pressure before. I have many, many good reasons for not wanting to get married, or for at least being very, very warry of it. My mom's been married 3 times with 2 divorces and one annulment, my dad's been married twice with one nasty divorce and now he looks 10 years older every time I see him, each of my aunts and uncles, 5 on my mom's side and 2 on my dad's, have been divorced at least once, one aunt has divorced the same man twice and is now remarried to him and one aunt was stood up just weeks before her second marriage was to take place, and even my grandma divorced her first husband (their marriage was arranged by their families in the Phillipines). I'm not so pessimistic to believe that these couples haven't had their romantic, loving moments, or even years, but the wreck and ruin of marriages that I've seen throughout my life, especially with my own parents' bitter and vengeful divorce, hasn't really left the word "marriage" in the best standing with me. For me, it's the signal of the beginning of the end, the moment where you realize that someday your happiness will come to an end... perhaps in death, after a loving life lived together, but statistically and if we really do learn to live and love from those around it, probably will end in a courthouse, perhaps with your children caught in the middle. Like I said before, I hope that these feelings I have will change over time, but no matter how much faith I have in Aaron, our love and our ability to work anything out, I somehow still fear that a marriage license will change that... and I know that when I go to sign it, I'll think to myself, "now the countdown really begins..." Sad? Yes, but somehow I can't believe that I'm alone... a lot of kids who've come from families like mine must know how I feel.

Posted by: Kristina at November 24, 2003 06:20 PM

But what happens when you're mid-twenties, and in a longstanding committed relationship, but with no desire to be married so young?

Out of respect to that fairly significant committment you're making, doesn't it make sense to take a lot of time and really be ready?

Do you just wait around a few more years, and then if you're still together you can make it official and get that tax break? Do you jump in early and take your chances because it's the smart move financially? Why is one choice better than another in the eyes of the government? How does an institution like marriage - one that fails with unwaivering regularity - retain any value? Why should this particular "committment" be rewarded when these self-professed committed couples still jump ship half the time?

My only hypothetical deadline for getting married is before I breed, to avoid the whole "bastard child" situation that gets people all excited ... but actually that's quite cool these days, isn't it?

Posted by: kati at November 24, 2003 06:50 PM

I think bastard children are the main reason, actually. It's a tradeoff: Society no longer raises its eyebrows disapprovingly at you having sex, and you get a tax break, and managing medical visits is easier. In exchange, you agree to a contract which makes leaving your partner and/or non-bastard children a more difficult process.

Marriages fail a lot, but at least they're legal contracts. Think of the children! For God's sake, won't someone think of the children!?!

Posted by: sean at November 24, 2003 07:06 PM

So, by statute, persons of the opposite sex who do not meet the requirements for filing a Domestic Partnership Claim would have NO rights to the other's property? Real life scenario: The parties dated years ago, as a friend he allowed her to move into his home; they have been living together for about 11 years as roommates with no romantic ties to each other. He is 49 years old, she is 54; both work. The mortgage and all the household bills are in his name, which he pays. He wants her to leave. Is his property in jeopardy if she were to request a kick out order in family court under the domestic violence statutes?

Posted by: beth at August 14, 2004 12:53 PM

I'm not in law school so I could be way off base, but haven't there been cases where two same-sex partner's have written out wills and given each other power-of-attorney and then when crunch time comes and decisions need to be made, all of a sudden one of the partners' families steps in and contests and overturns the power of attorney or will. I feel like I've heard about this happening before and if that's true than these alternative options aren't as air-tight as 2 rings and a trip to city hall for opposite-sex couples.

By the way, does anyone know how the conservatives justify commonlaw marriage with their desire to protect the sanctity of "traditional marriage". There doesn't seem to be anything traditional about it. An honest question.

Posted by: Clint at August 14, 2004 01:54 PM

commonlaw marriage isn't recognized in all states, for precisely that reason.

when we covered CL marriages in my contracts class i pointed out that when people come out against commonlaw marriage they're not defending marriage, they're defending weddings.

Posted by: holohan at August 14, 2004 04:12 PM

seems to me that CL marriage is out-dated, like "handfasting" historically both were needed where the wedding would have to wait for the circuit judge or preacher to make the rounds - but that's not true now because opposite sex couples can get married very easily if they want the legal benefits of marriage...i'm not against CL marriage, just thinking "out loud"...Anyway, my question on Aug 14, 2004, was posted because it's my friend who is concerned about how the woman will respond to a request to leave, she has emotional problems & is drinking more & he in trouble?

Posted by: beth at August 16, 2004 02:59 PM

the problem i have with commonlaw marriage is that it seems it often comes up where people are seeking the benefits of divorce rather than marriage. you're more likely to hear about a CL marriage dispute when a lengthy relationship ends and one party wants some of the other party's stuff. it would be more palatable if people lived together for seven years (or however long) and then started bugging the government for tax breaks, for example.

as for your question, i'm afraid anything kristina or i said in response might be considered legal advice, which would be bad. very, very bad.

Posted by: holohan at August 16, 2004 04:07 PM

ah, so true...i didn't think of that until i came up the same concern about ME giving my friend legal advice i'm not qualified to give--You're right, people do use CL when they are seeking "divorce rights". anyway, i'm curious about the history of CL marriage just as a sort of pointless exercise (i'm housebound due to a disability, i need "brain exercise" & only recently got access to a computer. i love your site & i appreciate the response to my comments...thanx!

Posted by: beth at August 17, 2004 08:28 PM

As far as I know, California doesn't have CL marriage, which is good for me because if I'm going to be married I definitely want the wedding. CL marriage is about divorce rights more than marital rights and I really don't feel qualified to say anything else on the subject since I'm a crappy law student and I just came out of a huge mud pit.

Posted by: Kristina at August 18, 2004 08:35 AM