Editors, Daily Planet:
The road leading to full inclusion of gay civil marriage in California state law has been marked with detours to the land of “domestic partnership.” Like the recent Massachusetts groundbreaking decision, it is now time for Californians to travel a more direct route to this destination by directly challenging the constitutionality of restrictive state marriage laws.
In April 2001, 11 gay and lesbian couples in Massachusetts applied for a marriage license. All were denied, and thus began their adventure working to legalize gay marriage.
On Nov. 19, 2003, they and thousands of their gay and lesbian neighbors arrived at their destination: The state Supreme Court ruled that it is unconstitutional to prohibit same-sex couples from marrying because, in the words of the chief justice, to exclude gays from marriage “is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”
Similar to Massachusetts, the California State Constitution opens with the following statement: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
Gay marriage is legally consistent with this basic civil tenet, because it recognizes that adult citizens have the autonomy to be able to enter into legal relationships of their choice without state interference or moral obstruction.
In California, the legal relationship between committed gays and lesbians has been relinquished to the creation of a dazzlingly unequal system that in very few ways parallels marriage: domestic partnership.
In 1999, California created a state Domestic Partner Registry, required hospitals to extend visitation to domestic partners, and allowed state workers to receive health benefits for their partners. Two years later, in the aftermath of the Knight initiative that passed defining marriage as being between a man and a woman, another law was enacted that allowed twelve new domestic partner rights. Most recently, in what the media erroneously called the “Virtual Gay Marriage Act,” approximately a dozen new rights were bestowed by the Legislature, such as community property ownership protections and bereavement leave for state employees. California cities have embraced this legal definition of domestic partnership by creating similar municipal laws.
These 27 state domestic partnership rights pale in comparison to the more than 1,000 state and federal rights granted legally married couples. Even the nomenclature “domestic partnership” clearly shows separate legal status from marriage, and highlights the second-class position of committed gay relationships in the eyes of the law.
Until 1948, it was illegal in the United States for a white person to marry a person of color. The landmark case that originated in Los Angeles when Andrea Perez, who was white, filed a marriage certificate with Sylvester Davis, who was black, changed racist and exclusionary marriage laws, finding them unconstitutional by the California Supreme Court. In this ruling, justices concurred that marriage is a fundamental right of all citizens, and moreover that “Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws.”
The road has been paved, both in Massachusetts and California, for gay marriage to be legally recognized.
Now, it takes brave souls to travel this difficult but rewarding path, like the 11 in Massachusetts or the two back in 1948, to judicially challenge restrictive marriage laws in California.
Domestic partner and Berkeley resident