Tuesday, June 26, 2007

How Important is "Marriage"?

The California Supreme Court is currently considering a case that will decide whether denying same-sex couples the right to marry is a violation of the state's constitution. Last week, the Court sent both sides in the case a set of questions it wanted answered.

From the questions, it seems the Court is trying to determine whether or not the state's domestic partnership law provides all the legal rights and responsibilities of marriage, thereby making the extension of equal "marriage" rights a moot point. The reasoning seems to be that if gay couples in a domestic partnership get the same legal rights (on a state level) as straight married couples, is there a need to allow same-sex couples to marry?

It all seems to hinge on the word "marriage": just how important is that word? The Court asked the two sides four questions. Number three reads, in part: "Do the terms "marriage" or "marry" themselves have constitutional significance under the California Constitution?" If the state decided to change the name of the legal relationship we now call "marriage" to something else, what would that mean for couples within the state?

What seems more important to me is what that would that mean for couples in the state in terms of their legal standing on a federal level? Obviously marriage delivers important federal benefits, the most vital being Social Security survivor benefits and the ability to grant a partner permanent resident status through marriage. I've advocated in the past for a requirement that all couples who want the legal benefits of marriage, no matter their gender mix, would need to enter into a new legal arrangement that could be called "civil union" or some other term. Those who want to "marry" could then go to whatever church would have them to enter into that spiritual union.

The challenge is, can you get recognition of civil unions on a federal level without the term "marriage" being applied to them? That's a question for which I don't yet have an answer. But it's one that could have tremendous consequences should California decide to create a legal couples relationship that is not called "marriage." Would same-sex couples who entered into a fully-equivalent legal relationship be denied federal benefits of marriage? Would opposite-sex couples be denied these same rights if California's new legal "marriage" was not in fact called "marriage"? More questions for which I lack answers!

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