Silver Linings

The Volokh Conspiracy - The hardest day of the cruelest month

Dale Carpenter is, as usual, quick and spot-on in his analysis of today's ruling from Washington that the ban on same-sex marriage in that state is constitutional. Lest the ruling tempt gays and lesbians to despair after a month that has seen setbacks to the marriage cause in New York, Connecticut, Massachusetts, Tennessee, and Georgia, Carpenter finds a passage in it that seems to indicate that, while it does not wish to call it marriage, the Washington Supreme Court is concerned with the very real hardships that face couples that are denied legal protections associated with marriage:

We do not dispute that same-sex couples raise children or that the demographics of "family" have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. (Citations omitted).

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to- day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person's property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

But plaintiffs have affirmatively asked that we not consider any claim regarding statutory benefits and obligations separate from the status of marriage. We thus have no cause for considering whether denial of statutory rights and obligations to same-sex couples, apart from the status of marriage, violates the state or federal constitution. (emphasis added)

In other words, Carpenter says, "To the state legislature, the message seems to be this: 'Get moving on addressing the hardships faced by gay couples and their children, some of which we’ve listed for you. You don’t have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don’t act, we might.'

To gay-marriage litigants, the message seems to be this: 'Go to the legislature and see what can be done about the sorts of problems you’ve identified and that we agree exist. If the legislature is unresponsive, come back to us not with a claim for the status of marriage, but with a remedial claim for the benefits and protections of marriage for your families.'"

This summer may be remembered not as the summer gay marriage died, but as the one when it realized it couldn't emerge from the cocoon a fully-formed, beautiful butterfly. It looks more and more like there will have to be some intermediate stage--the civil unions of Vermont and Connecticut, the domestic partnerships of California--before we are finally granted full equality. I hope the masterminds of our strategy are paying attention. I want marriage very much. But I care a lot less about the damned word than I do about the legal protection that comes with it. If compromise is the only way to get it, I'd say it's time to compromise.