Reflections on the Marriage Arguments

For those of you who may have missed it, last Tuesday (March 4) the California Supreme Court heard oral arguments on whether it is constitutional to deny same-sex couples the right to marry. I have long been something of a skeptic on this issue -- neither sure that marriage was an issue we could win, nor sure it was really worth fighting for. I have come around on both points. When I spoke to the Governor's Commission on the Status of Women last summer, I summarized it this way: I, as an adult -- and especially as an attorney -- can (and do) appreciate the recognition and protections provided to same-sex couples by our state's domestic partner laws. But when I try to explain to my children that it is illegal for their parents to marry, but that they shouldn't feel bad because we can register as domestic partners and get the same legal benefits, it doesn't work for them -- and if it doesn't work for our children, well ... it just doesn't work. And in a real sense, that is where I have ended up on this issue. If what we want is true equality, we cannot have that without the right to marry. We can have legal rights -- we can make great progress -- but we can't have full equality. Marriage is a fundamental institution of our society, that has enormous meaning to many people. Being denied the right to marry makes us second class citizens. That is the bottom line. That said, I could not agree more with Nancy Polikoff, whose new book Beyond (Straight and Gay) Marriage cogently makes the argument that we, as a society, need to be coming up with a better yardstick for defining "family" than whether or not folks are married. Non-marital families deserve recognition and protection -- and need access to benefits and services at least as much as marital families do. This is a classic example of a "both/and" (as opposed to "either/or") situation. Same-sex couples should have the legal right to marry; AND we should do a much better job of protecting the non-marital family than we do now. What amazes me is that, having listened to last Tuesday's arguments, I am surprisingly optimistic that the California Supreme Court may be ready to agree with me.