The Marrying Kind

California likes to pass initiatives and "propositions." Matters we folks in Indiana routinely leave to our legislature wind up as ballot measures out in la-la land; the just-concluded March 7 primary…

California likes to pass initiatives and "propositions." Matters we folks in Indiana routinely leave to our legislature wind up as ballot measures out in la-la land; the just-concluded March 7 primary included–among others–proposition 22, sponsored by State Senator Pete Knight, which read in its entirety as follows:

" Only a marriage between a man and a woman shall be valid or recognized."

The Indiana General Assembly passed a similar measure two or three years ago, to "send a message" (see last month’s column!) that we Hoosiers believe in traditional morality, God, the Bible, and disenfranchising gay people.

What’s the fuss? Why should we care about same-sex marriage anyway? In an era when people (straight or gay) are as apt to live together as marry, when increasing numbers of churches and synagogues are willing to bless same-sex partnerships, when families are becoming more supportive, why does the state’s recognition of gay unions matter?

A recent paper by Michael S. Wald of Stanford Law School details the significant legal advantages that are available only through legally sanctioned marriage. Wald begins with a hypothetical: Suppose a married female couple with a child move from a state that recognized their marriage to a state that did not recognize it. One spouse had put the other through medical school, and had given up her job so that her partner could take a medical residency in the new state. Shortly after moving, the doctor spouse is killed by a drunk driver. If the marriage is not recognized, the surviving spouse cannot sue the drunk driver for damages; if they had no will, the surviving spouse would not inherit anything; if the deceased spouse had been in a coma prior to her death, the survivor would have had no say over the medical care she received, and–medical profession, please note– no obligation to pay the medical bills. Failure to recognize the marriage would also mean that the surviving partner would have no automatic legal right to custody of their child.

A three page appendix lists the rights that accrue to those whose marriages are legally recognized–rights unavailable to same sex couples, who cannot marry. Some are well known: a gay spouse will not be appointed guardian of an ailing or injured partner, will not be entitled to family leave, will not be able to visit a partner who is in a state prison, will not be considered a parent of a nonbiological child, will not be entitled to temporary support during dissolution of the relationship, or to half of the accumulated property afterward. Tax consequences are particularly painful: same-sex partners cannot file joint income tax returns, and cannot use spousal gift and estate tax exemptions and deductions.

Others are less well-known: same-sex partners do not benefit from the rule that one spouse cannot be compelled to testify against the other. They do not benefit from state stepparent laws. They do not have the right to be appointed administrator of a decedent partner’s estate if the partner dies intestate, or an executor is not named in the will. A same-sex partner cannot seek civil damages for the wrongful death of a partner. Married people have an automatic right to receive unemployment benefits when one spouse resigns a job in order to accompany the other to a new location–same-sex couples get no such consideration. There are many more.

Against these very real, very tangible inequities are the justifications offered by proponents of "protecting traditional marriage."

* Homosexuality is immoral. (So why do we allow rapists and murderers to

marry? Because they are so moral?)

* Marriage is for procreation. (So old people and sterile people should not

be allowed to wed?)

* Sex is only for procreation. (I’ll tell my husband!)

* Gay parenting is harmful to children. (Every credible research project on the

issue of gay parenting–and there have been literally hundreds of them–

has concluded otherwise.)

* Recognizing gay unions would undermine the institution of marriage. (The

same claim was made about interracial marriage.)

It is hard to look at this list without recognizing that the real argument against gay marriage is religious. But many religions are gay-accepting; many now recognize and bless same sex unions. Why do we allow the government to recognize marriages performed by some churches, while refusing to extend that same recognition to marriages performed by others? Why are we privileging some beliefs over others?

Why are we denying gay citizens the equal application and protection of the law?