The Issue Continues
I suppose that since California’s Supreme Court handed down its same-sex marriage opinion right after I posted my last rant regarding same-sex marriage, I should probably say something about it. I thought I didn’t have much to say about it, but it turns out I have two major points. One has to do with “legislating from the bench” and “activist judges,” and I will deal with that at another time. The other is how the California Supreme Court let the fight rise up over the name again. See, California already has a domestic partnership statute, and rather than saying that that needs to be applied in all arenas as the equivalent of marriage, the court said that marriage needs to encompass same-sex couples.
Let me make a point that will sound appalling, but the fact of the matter is that “separate but equal” can in fact be equal. It almost never works, but that does not mean it is impossible. It is possible for a state to pass a civil union statute that includes in its language that every right and responsibility afforded a married couple also applies to a (I apologize that I don’t know the term here; I doubt anyone does) civilly united couple, and that anywhere the word “husband,” “wife,” or “spouse” is used to add in the phrase (again making up a term for it) “or unionate.” This means a crapload of amendments to statutes plus a statute indicating its application to common law principles as well, but it is possible.
See, that’s the thing; marriage is just law; it’s just paper. It isn’t like “separate but equal” schools, buses, hospitals, drinking fountains, etc. Those things all have locations and facilities that complicate making things equal and ways people can slide the bar when they wish, making it legal but frowned upon for a White person to cross the line but illegal for a Black Person or permissible to take from the Black facilities when the White ones need resources. You could mandate equal funding for public facilities, but equal funding isn’t enough, because one location will end up needing to put that funding into some structural need the other doesn’t have, and suddenly the funding is effectively unequal, not to mention do you make the funding equal per capita or per facility.
When the only existence of the “separate” entities is in words in a law book, though, mere definition can make them “but equal.” So while I think that every hetty (shout out to you Dave!) who is comfortable with civil unions but not same-sex marriage is a flaming moron, I also don’t have a particular objection to the plan. Let the baby have his bottle; if it gets people the rights, then who cares that we had to make a concession to the ignorant. Why oppose a compromise where you have to give up nothing of value? Then some day in the future, someone in the state legislature would say, “Why don’t we just change this all to the same term?” and everyone will shrug and say, “Yeah, why not!”
What is likely to happen, though, is that not every t will be crossed and every i dotted, so there will be room for people to say about one right or another, “Oh, no, that one’s really only for married people.” You know what, though, let that come out first before fighting it. First, it lets those who oppose you only out of discomfort see that there is a concrete reason for your naming concern. Second, trying to fight battles before they happen is playing the other side’s game. See, the other side has tradition on their side, so they can parade all sorts of horribles that people will believe but would not actually happen. I’ve heard some of them suggest, for example, that allowing gay marriage means that religious entities would have to perform same sex marriages. This is, of course, bull. A Catholic Church isn’t required to marry two men any more than they’re required to marry two Jews. Hell, they aren’t even required to marry two opposite sex Catholics who don’t follow the Church’s rules, even though a justice of the peace wouldn’t be allowed to deny them. But that’s just it, examples like that will never actually be a problem, but playing the game of “let’s fight about how this could be applied” gives an advantage to those pushing for the status quo, because they can always make up fictions about how things could get worse than they are now.