Divorcing Gay Couples in California

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 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.