Over the past month, state supreme courts in Washington state and New York have turned down same-sex marriage for the most tenuous and disingenuous reasons, arguing that only traditional couples can raise children, and that the main reason for marriage is procreation.
This is just the start of a long battle ahead to convince America that we are not as different as they think, but right now only 39 percent of Americans support same-sex marriage. Until the day comes when we win this fight, we simply cannot afford to let the domestic partnership protections we have already won wither away. At this moment, when the California Court of Appeals has questioned how it can back gay marriage when we already have a parallel set of protections under my original domestic partnership laws, AB25 and AB26 (Migden), and the later AB205 (Goldberg). In response, I want to remind the justices and our community that we can't live without these essential protections until the dust has fully settled all across the country under a stable marriage system that protects all forms of relationships – gay or straight, transgender, platonic and elderly.
There are many kinds of couples living under myriad circumstances often too complicated to categorize into law, which is why we need domestic partnerships to provide legal protection to these couples until marriage laws catch up to reflect social reality. In fact, over 5 million mostly opposite-sex couples live in domestic partnerships across America, and they aren't just lovers. They can include two individuals raising a child jointly, a grandson caring for his grandma, or any number of other family forms unaccounted for, but in need of basic legal protections.
Massachusetts already allows same-sex marriage, but the need for maintaining the state's domestic partnership laws has quickly become evident to same-sex couples – not just for those couples that don't want to "conform to the system" but also for those that want a more permanent legal status able to weather the constant stream of ballot box swords hanging over their marriage law's head. As a case in point, the Massachusetts Supreme Judicial Court just ruled that a constitutional amendment banning same-sex marriage could appear on the November 2008 ballot.
Considering the unstable national scene, with over 20 states that have already passed initiatives banning same-sex marriage and a long hill to climb before Congress ever approves same-sex marriage, it seems more than premature to turn our backs on the protections already won through domestic partnerships. Yet this is exactly what is happening at workplaces all over Massachusetts. A sense of alarm recently rang through Boston's gay community as the Boston Globe demanded that its Massachusetts-based domestic partners receiving benefits either marry or stop receiving health care.
Domestic partnership laws vary from state to state, but in California they are already almost as good as marriage – except for a few vital differences. For one thing, they do not provide over 1,049 federal benefits and protections to married couples. This is a key distinction, because these protections include tax incentives, the ability to marry and naturalize a foreign partner, along with a number of other measures designed to facilitate a stable, lifetime relationship. Another essential difference is the ability to move to another state, since many still do not accept domestic partnerships from another state as valid in their own. For these reasons alone, it is crucial that we continue to work toward same-sex marriage.
California has one of the most comprehensive domestic partnerships laws in the nation, providing for as many benefits and responsibilities as the state is able to provide, other than through outright marriage. These include community property laws, shared health benefits and the responsibility for both partners to participate in their child's upbringing upon separation.
There is still one important area that our domestic partnership law does not provide for, which I am working to correct this year through my bill, SB1827 (Migden). Domestic partners still have to file their state tax returns separately, causing most to pay more than their married counterparts; joint filers often qualify for more credits and deductions. Under my bill, 59 percent of California's domestic partners would see a reduction in their taxes to the state.
This is a matter of fairness, which we need to keep fighting for, no matter what the courts in Washington State and New York think about procreation. Same-sex couples are taxpaying members of our society, and should begin to pay their taxes just like married couples do.
Obviously, for some same-sex couples, domestic partnerships are not the end of the road and they never were intended to be. Clearly they are a steppingstone to the day when all couples are afforded equal and interchangeable rights, protections, and responsibilities across America – regardless of how they were created. Even when that day comes, however, it will still be important to maintain a robust system of domestic partnerships to protect couples that do not easily fit into the circumstances envisioned by lawmakers and those with influence in our society. It is important that all people in close relationships, no matter what flavor, can visit each other in the hospital and plan the other's funeral according to the person's wishes. Domestic partners can be same sex or opposite sex, but these privileges must be open to all members in our society, whether they are eligible for marriage or not.
State Senator Carole Migden (D) represents portions of San Francisco, Marin, and Sonoma counties. She authored California's first domestic partnership law, AB25, in 2001.