Going Past Domestic Partnership: The Benefits Red Herring

Jackie Goldberg has an article in yesterday’s LA Times entitled, Going past domestic partnership: The same-sex unions law I wrote was never supposed to be an excuse not to legalize marriage for all.

Goldberg’s article makes an illogical leap from a discussion of problems with domestic partnership benefits to her proposed solution of “same sex marriage.” The benefits discussed are a statutory creation working through the usual glitches attendant to new legislation. Marriage, on the other hand, is based on long-standing tradition grounded in public policy and society’s interest in procreation. In reality, benefits are not the raison d’etre for marriage; they are, rather, the state’s incentive to encourage men and women into committed relationships for the benefit of children. The voters in California implicitly understood this and accordingly passed Proposition 22 back in 2000, which defined marriage as a union of one man and one woman.

As Goldberg readily admits, the California legislature has given domestic partners all the rights and obligations that the State is entitled to give to married couples. The problem, therefore, cannot be that the state has not given enough despite withholding marriage. If there are issues arising from how these benefits are applied, or questions of construction with other statutes, we should resolve these questions as we would with any statutory scheme. Goldberg’s solution, by contrast, is to ignore the public policy debate and use benefits as a ramrod to batter through the democratic process.

Most problems with how these benefits are applied in practice will be resolved through judicial action. If Goldberg or others believe the courts get something “wrong,” they are free to return to the legislature to urge corrective action. Is Goldberg naïve enough to believe that benefits issues do not arise in the context of marriage? Or that married couples are able to rely on default provisions of marital status and thereby avoid hassles? Let me give one small example. My wife and I have three children. How many married couples believe their marital status means they have no need to execute wills, create trusts for the benefit of their children, name guardians, or sign health proxies? I have never once said to my wife “There is no need for us to plan; as a married couple we have the marvelous default provisions of the intestacy laws.” The fact is everyone in society is burdened with planning, and controversies constantly arise, for married and single folks, over “benefits” and similar issues.

The benefits are clearly a red herring. Marriage represents full societal approval, and a discussion about benefits is no more than a sneaky end run to bypass a full societal debate.