Issue:  Vol. 48 / No. 12 / 22 March 2018

Marriage rites vs. marriage rights

Guest Opinion

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Our community's singular focus on achieving the rites of marriage is diminishing our chance of achieving the rights of marriage.

Our lawyers told us to trust the courts. Pro-same-sex marriage California Supreme Court Justice Joyce Kennard told us to trust "the courts alone." In the decision briefly legalizing California same-sex marriage Kennard wrote, "an unconstitutional denial of a fundamental right is not a matter to be decided by the executive or the legislative branch, or by popular vote, but by the judicial branch of government" and "the courts alone must decide whether excluding individuals from marriage because of sexual orientation can be reconciled with our state constitution's equal protection guarantee."

Fine words. Lofty rhetoric. Now, fearing possible recall, Kennard (pronounced canard) has changed her mind saying that a popular vote, "the power of the people," is supreme even if it takes away "a right as fundamental as marriage." (Her words.)

We have had many court cases with few successes. Each case caused a tidal wave of reaction totaling 31 defeats in 32 elections and 45 of 50 states banning same-sex marriage. Our temporary success in California resulted in Prop 8 and similar losses in Arizona and Florida. As righteous as this cause is the strategy to achieve it has been a failure.

The history of our fight for the rights of marriage proves we cannot trust the lawyers to be right, we cannot trust the judges to be consistent, and we certainly cannot trust a popular vote of the people to be compassionate.

Our only consistent success has been working through legislative bodies. And right now the dirty art of compromise, necessary for the political process, is all we have left.  Thank goodness we are amazingly successful at it. Not one of the multitude of domestic partnership or civil union laws passed by legislative bodies have ever been directly overturned. Rather, they have only been overturned when added to an anti-same-sex marriage law.

We could continue to slog it out, state by state, defeat after defeat. But even when we do occasionally win "marriage" those victories will not result in true marriage equality because they will lack the federal benefits of marriage. The federal rights of joint income tax, shared Social Security benefits, and immigration rights (plus over 1,000 more) are far more important than state benefits. Having the rights of marriage is far more important and life changing than a legal category labeled "marriage" which is devoid of rights.  Marriage in California, Massachusetts, and Connecticut did not, does not, and will not have federal rights if our focus remains on the states.

President Obama wants Congress to repeal the Defense of Marriage Act and enact legislation giving federal marriage rights to "legally-recognized unions." This means that anyone in the 11 states and Washington, D.C. that have same-sex marriage, civil unions or domestic partnership could have full federal marital rights. This also means that if you live in any of the other 39 states you could travel to Massachusetts and get married or to Vermont to get a civil union or to California, Washington, or Oregon and sign up as registered domestic partners and have all the federal marital rights even if your home state does not grant you state marital rights. Marriage rights coast to coast despite our state by state losses. That would be a great accomplishment. (Dare I say, "Change we can believe in"?)

The fight for a legal category labeled "marriage" in California is a noble one. But history shows that when the same proposition is put on the ballot too soon the result is the same. Even if we defy history and win we will still not have marriage equality because it will not have federal rights. More importantly, we will have passed up our chance to put our energies toward achieving federal marriage rights when our president has high approval ratings and we have large Democratic majorities in the House and Senate. We will probably have smaller majorities after the 2010 midterm election. Since 1942 the sitting president's party has lost an average 28 House seats and four senators in midterm elections. So the time to act is now.

Our past strategy has been an overwhelming failure. We can cling to it or we can change to a strategy with a successful track record. We can continue to fight for the rites of marriage in California or we can follow Obama's suggestion and fight for the rights of marriage in the United States Congress. If we follow Obama we can achieve our rights. If we refuse to change course we will have neither our rites nor our rights.  Imagine: Equal marriage rights throughout the land. The choice is ours.

Leland Traiman chaired Berkeley's 1983 Domestic Partner Task Force, which wrote the world's first domestic partnership policy enacted into law. Leland founded Rainbow Flag Health Services & Sperm Bank ( and successfully defended the rights of gay sperm donors against the Food and Drug Administration. He lives in Alameda, California, with his husband of 18 years and their two children, ages 9 and 3.

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