In October of 2008, I stood on a beach in Massachusetts with my partner of then-five years, and made vows not altogether unlike those my parents took in a church in Illinois. Under the laws of Massachusetts, Connecticut, Vermont, New Hampshire, Iowa, the District of Columbia, and now most recently, California, I have a husband. Under Federal law, and in the other states of the Union, I do not. What does that mean, exactly?
- We file our taxes separately, and gain none of the Federal benefits of joint filing. (Though, having run the numbers, I think we would actually wind up paying slightly more, or getting slightly less of a break at tax time, funnily enough...)
- While my husband is covered under the insurance of my day job, we incur "imputed income." What this means is that, because he is not my spouse under Federal law, what my employer pays for his insurance (slightly less than half of the premium) counts as taxable income on my paycheck. That's right! Those who are screaming about how allowing same-sex marriage means they'd be subsidizing my marriage have no problem with the fact that I'm paying MORE in taxes than they are, thus effectively subsidizing theirs.
- Without filing a Living Will and Power of Attorney, should I be medically incapacitated in some fashion, he cannot make decisions for me. Even with such documents, if a blood relative of mine were to come in and make a conflicting decision, they would be given preference.
- In the event of his death, I pay taxes on his half of all of our jointly-owned property (house, all its contents, our cars, bank accounts...) because I would be "inheriting" it from "his" estate. If a blood relative of his were to decide to dispute my claim to our property (it happens, sadly, though his family wouldn't) I could lose everything, because I have no real claim.
Now, especially in the case of the last two, these are obviously worst-case scenarios. Worst-case scenarios do happen, unfortunately. A couple in California were actually separated and kept separate by the county government, despite their 20 year relationship, because there was no legal standing of the relationship between them. One partner died, alone, and the other was left with nothing. After 20 years together.
A lesbian couple were going on a cruise for their anniversary, and taking their two young children with them. One partner had a brain aneurysm as they were getting on the boat and was rushed to the hospital. The other partner, and their children, were denied entry to her room for several hours. They were finally allowed into the room about ten minutes before she passed away, and then, only once her sister had arrived on the scene.
Can you imagine? Spending years of your life with someone, loving them, caring for them in times of need, and then when they need you most, being denied entry to their room because your relationship wasn't "good enough"?
The Proposition 8 case in California had a fascinating resolution. I will summarize here what Judge Vaughn R. Walker said in his decision. Any emphasis has been added by myself, and any ellipses (...) indicate portions where specific case references or page references have been removed for ease of reading. The full 136-page decision is available online if you are interested.
Proponents of Proposition 8 (Those against gay marriage) gave the following as purported state interests in denying same-sex couples the right to marry:
- Reserving marriage as a union between a man and a woman, denying any other type of relationship.
- Proceeding with caution when implementing social changes.
- Promoting opposite-sex parenting over same-sex parenting.
- Protecting the freedom of those who oppose marriage for same-sex couples.
- Treating same-sex couples differently from opposite-sex couples.
- "any other conceivable interest."
Judge Walker's response to each was thus:
- "The evidence shows that the tradition of restricting an individual's choice of spouse based on gender does not rationally further a state interest despite its 'ancient lineage.' Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles...California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman...Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life."
"Tradition alone cannot legitimate this purported interest."
- "The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage...The evidence shows that allowing same-sex couples to marry will be simple for California to implement because it has already done so; no change need be phased in. California need not restructure any institution to allow same-sex couples to marry."
- "The evidence supports two points which together show Proposition 8 does not advance...identified interests: (1) same-sex parents and opposite-sex parents are of equal quality...(2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents."
- "To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals' moral views are an insufficient basis upon which to enact a legislative classification."
- "The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples...The evidence fatally undermines any purported state interest in treating couples differently; thus, these interests do not provide a rational basis supporting Proposition 8."
- "The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterpart; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal...Proposition 8 violates the Equal Protection Clause because it does not treat them equally."
And, from later in the decision, a point of note to all those who are saying, "Didn't I vote on this?"
- "The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California's obligation is to treat its citizens equally, not to 'mandate [its] own moral code.' 'Moral disapproval, without any other asserted state interest,' has never been a rational basis for legislation...Tradition alone cannot support legislation."
- "The Due Process Clause provides that no 'State [shall] deprive any person of life, liberty, or property, without due process of law.' US Const Amend XIV Sec 1. Due process protects individuals against arbitrary governmental intrusion into life, liberty or property...When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny."
"The freedom to marry is recognized as a fundamental right protected by the Due Process Clause."
"That the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.' West Virginia State Board of Education v Barnette"
As I said, the full decision is 136 pages long, but these highlights give you a pretty clear picture of the Judge's opinion. Same-sex couples and opposite-sex couples, in the long run, are no different. Men and women no longer fulfill disparate roles in day-to-day life, so requiring that a marriage be comprised of one of each has no reasonable supporting argument. Denying same-sex couples the right to marry does not magically a) make us disappear, or b) make it more likely that opposite-sex couples will get married and make babies and raise them together.
I know a number of couples among my friends who have married and not had children (I can name about five), some who have had children, are raising them together, and are not married, some who have had children, divorced, and are raising them in separate households entirely. Whether or not I can make medical decisions for my husband, or whether or not I have to pay inheritance tax on my own home if something happens to him, has no effect on these families whatsoever.
But most importantly, look at that last bullet point. Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections. The ability to have legal protection of my relationship under the law is a fundamental right. Civil, legal marriage is a fundamental right, and it should not be up for debate, or up for a vote. You didn't have to ask me before you got married, and I'll be damned if I have to ask you. It's not about approval, and for that matter, I don't particularly care about social acceptance. What I care about is my husband, and that we have the right to take care of one another, and should the unthinkable happen, that we have the right to our homes and our memories, just like anyone else.