AtMP has seen important progress on unmarried people’s rights since its founding in 1998. But now I worry that the trend might be starting to slip into reverse. Two recent court decisions – both hailed as gay rights victories – actually highlight the dangers of using marriage as an exclusive public policy ideal, instead of valuing all individuals, caring relationships and families.
While celebrating that California’s Prop 8 was overturned and same-sex couples may regain the right to marry there, our friends Rachel and Bella DePaulo point out that the judge and the winning lawyers elevated marriage and disparaged alternatives to marriage, to an extraordinary and unnecessary extent.
The ruling does not affect unmarried heterosexual couples who also gained coverage as part of a change in state policy pushed through by the administration of former Gov. Janet Napolitano. Absent some change in policy — or a different lawsuit — they will lose their domestic partner benefits at the end of this year. Attorney Dan Barr said the lawsuit did not cover these “straight’’ unmarried workers because they are in a different legal situation: Unlike gays, they can get married to obtain benefits.
In essence, both court cases say “if you can get married, you should, and the burden’s on you if you don’t.” We see parallels in the private sector: both Google and Syracuse University are reimbursing income taxes their employees pay on health benefits for same-sex but not different-sex partners.
Today I had a very pleasant and helpful conversation with an attorney at Lambda Legal. I learned that lawyers have a hard time making an equal protection claim for different-sex couples. To paraphrase, at least two courts have ruled that ‘choosing not to drive a Cadillac does not give someone the right to drive a Pinto.’
I’m not a lawyer, but my instinct says that a winning case would have to demonstrate that being domestic partners or staying single are better options than marriage for a significant group of people. We’d have to prove that marriage is the Pinto, not the Cadillac. Obviously, many AtMP members believe this is true for themselves. Can we build a legal argument to that effect? Can we build one that overcomes the lens of traditionalism through which judges and business leaders see the world?