I am not a huge fan of marriage. Or perhaps it would be more accurate to say that I am not romantic about it. It could be my family history – a long line of divorces stretching back to my great-grandparents. It could be my understanding as a lawyer and an educated feminist that the legal history of marriage has been fraught with sexism – marriage has been a legal mechanism to deny women rights to property, to their children, and even to their bodies. I was already a lawyer when state criminal laws were changed to allow rape charges to be brought against husbands – it is that recently that a woman was deemed to have consented to sexual intercourse simply by virtue of being married to the man who forced her to have sex.
But then in the late '80′s I began working with The AIDS Law Project of Pennsylvania. The sudden death of so many gay men left many long time mates with no rights to the homes they lived in, to the bank accounts they had helped fill, to make critical medical decisions for the people they loved and with whom they had lived their lives. I saw families that had long disowned their gay children step in and strip grieving survivors of property. People were barred from the funerals of men who were their husbands in every way but under the law.
Marriage means different things to different people. It has religious significance to many. It is a public statement of love, commitment, and an intention to be together forever. Legally, it creates entitlement to property and the right to be "next of kin" with all the power that brings. Why any two people get married is none of my business. I get to decide whether I will marry and consider the implication of that decision on me, my property, and my children. I can't fathom why anyone would think he or she has the right to make that decision for anyone else.
But, on March 5, 2009, the California Supreme Court will hear oral arguments on who gets to make this decision in California. In case you've been napping, at issue is the legality of same-sex marriage in that state and of Proposition 8, an attempt to amend the state constitution to define marriage as only possible between a man and a woman. More precisely the legal questions are:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation-of-powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?
In the worst case outcome, the effect of the California Supreme Court's decision could be to "divorce" the 18,000 same-sex couples who married prior to the passage of Proposition 8 and prevent other same-sex couples from marrying. The legal briefs and some official summaries of the cases can be found here.
Keeping in mind that I am not romantic about marriage, that I think who people love and have kids with and how people dispose of their property is just plain none of my business, take a look at this video made by the Courage Campaign. It moved me to want to fight even harder to ensure that everyone has the right to marry, and stay married, to the people they love.
"Fidelity": Don't Divorce… from Courage Campaign on Vimeo.
I’ve also had a long family history of divorce and unhappy marriages that began at an age that the female spouse was so young that the male spouse would have landed in jail today (tell me about the good old days of “traditional marriage” and I might just retch.)
That said, marriage is a convenient way to establish property, childcare, healthcare (my reason for jumping into it when I did) and other legal rights, and should be offered to all those who want to establish those rights, and that establishment of rights should be recognized in all states.
Twitter: phdinparenting
When I read the title of this post a different scenario came to mind. In Canada, when gay marriage was legalized, it took a while for Divorce legislation to catch up (not sure if it has yet…I haven’t been following it closely). As a result, there were gay couples that got married and then later wanted a divorce and couldn’t get one because the divorce legislation didn’t account for the possibility of gay marriage. It was an odd situation.
With regards to the actual theme of your post, here is a comment that I wrote on The Hippie Housewife’s post about homosexual marriage (http://hippiehousewife.blogspot.com/2008/11/homosexual-marriage.html) last year:
“I am a strong believer in the separation of church and state. I think that marriage is a religious concept and that it should be left to religions. In Europe, most people get “married” twice, once in church and once in the town hall, because the church wedding isn’t recognized as legal.
I would take it a step further than that. I would say if you want to get married, leave that to the churches. The government should have some definitions around what makes a couple or family if they need to for the purposes of tax treatment, benefits, pensions, immigration, etc. but it should not be marriage. Not for homosexuals and not for heterosexuals. Not for anyone.
But as long as the government recognizes the marriage of heterosexuals as a legally binding contract, I think they need to offer the same option to homosexuals.
My husband and I only got married because at the time Canada’s immigration requirements required us to be married in order for me to sponsor him to come to Canada. Today, cohabitation is sufficient for immigration purposes.”
,but I had quite a bit of trouble with your comment box (using Firefox). It didn’t seem to want to let me scroll beyond what is visible in the box to continue a longer comment, so I wrote this in Word and copied and pasted it in.
P.S. – I don’t know if you are trying to discourage long comments
Twitter: Jakearyehmarcus
I am with you Annie. Registration of domestic partnership for specific legal purposes (employment benefits, taxes, etc.) makes more sense to me.
I too went through the legal process of marriage for entirely pragmatic reasons. I had an income drop after our first child and couldn’t afford my own health insurance (a huge issue in the U.S.). At the time, my mate’s employer did not offer health benefits to domestic partners (it does now). I certainly would not have gotten married otherwise.
For women who become primary caretakers and suffer the resulting loss in income, pension, and social security benefits, being legally married in the U.S. creates something of a safety net. I resent requiring that net. The economic value of raising my children should be recognized by the state regardless of whether I have married someone whose employment status creates these benefits.
Case in point – my low income during my child-bearing/rearing years made me disqualified for federal disability insurance. So if something happens to me, where will the money come from to replace my childrearing work (which would now have to be done by someone who is paid)?
Sorry about the comment box.
If you hit the down arrow key, the box will actually scroll so you can see your longer post as you write. It isn’t obvious and I am trying to figure out how to put that instruction in the blog. So far, I am not having a good relationship with WordPress plug-ins. 
Thanks for posting! Send your friends! I want more comments – and they can be as long as you want.
Thanks, Jake for once again educating me! I had heard of this Prop 8, but hadn’t researched the details.
Thanks for the link to the video – it reminds me of the breastfeeding Nurse-Ins videos. Showing the images goes a long way to normalizing things. (I was going to say there are few gays around here – but then I remembered that there actually are, or have been, at least 3 gay couples living in our small rural town of 400 people! (That I know of!) One was the minister who baptized my kids!)
BTW, I saw on the news here in Canada – 2 elderly women (in their 80′s or 90′s?) who are identical twins, and have lived together ALL their lives, were suing or making claims for something (sorry can’t remember if it was pension benefits or what). They felt that since they were an union and had supported each other all their lives, their death benefits should go to the other, just like a married couple.
I tend to agree with that arguement. Any committed union is a help to society, and should be encouraged.