The two guideposts in the battle for gay marriage in the coming
years must be federalism and incrementalism. Federalism
means focusing on the states.
Incrementalism means taking things slowly. Fortunately,
we have a successful template for the recognition of gay
relationships. While others were grabbing headlines with dramatic
judicial victories, gay Californians were quietly and patiently
persuading state legislators to experiment with increasing degrees
of legal protection for gay couples. There's still no gay marriage
in California, but we're getting awfully close. Here's how it was
done.
When first created in 1999, California's domestic partnership
program was little more than a formal registry. Two adults of the
same sex could sign up as domestic partners if they lived together,
agreed to be responsible for each other's basic living expenses,
and promised "to share one another's lives in an intimate and
committed relationship of mutual caring." A domestic partner could
terminate the partnership simply by writing a note to the other
partner.
That first year, the program created few tangible protections.
Domestic partners were given hospital-visitation rights. And cities
in California were allowed, but not required, to offer the domestic
partners of their employees the same benefits as spouses. That's
it.
The next year, 2000, voters in California passed the Knight
Initiative, which banned gay marriage. Progress in adding to the
rights of domestic partners that year was exceedingly modest.
Domestic partners were permitted to secure housing in specially
designed accessible residences for the elderly. The legislature
also passed a bill allowing domestic partners to use family medical
leave to care for a sick partner, but Gov. Gray Davis vetoed the
bill, insisting on an "off-season" for gay-related legislation.
The following year, 2001, saw more dramatic progress. Among many
other advances, domestic partners were given the right to use
stepparent adoption procedures; to sue for the wrongful death of a
partner; to make medical decisions for an incapacitated partner;
and to use sick leave to care for an ill partner. The state also
agreed not to tax the value of domestic partner health insurance
coverage.
In 2001, legislators also proposed to treat a domestic partner
as a "spouse" for purposes of inheritance when a partner dies
"intestate," that is, without a will. But the idea was shelved when
Davis threatened to veto it.
In 2002, in the wake of the September 11 attacks, Davis reversed
his position and signed the intestacy bill. Other minor progress
was made that year, including a law allowing domestic partners to
receive the birth and death records of a partner.
In 2003, the California legislature dramatically expanded the
rights and duties of domestic partners. Effective January 1, 2005,
domestic partners will be treated like spouses under state law,
except for state income tax purposes. (A proposal to allow domestic
partners to file joint state income tax returns was withdrawn after
a state agency estimated it would cost more than $5 million in lost
revenues in the first year alone.) A domestic partner can no longer
terminate the relationship simply by sending a note to the other
partner. Now the partners will have to get the equivalent of a
divorce.
What started as almost nothing for gay partners in 1999 will
have become shadow marriage by 2005. Yet there has been no great
public outcry in the state, in contrast to the political upheavals
that followed the revolutionary judicial victories in Hawaii
(1993), Vermont (1999), and Massachusetts (2003).
Two factors account for the difference. First, California
domestic partnerships were created democratically. California is so
far the only state to enact legislation of general applicability
recognizing gay relationships without being forced to do so by
courts. This gives people, including losers in the political
process, the satisfaction of having been heard by their
representatives. As we have seen, courts can be overruled by
constitutional amendments. When victories are earned
democratically, they're seen as more legitimate and are therefore
more secure.
Second, California's gay lobbyists and openly gay legislators
proceeded incrementally. They compromised, backing off when
necessary. In retrospect, we should thank Gov. Davis for
occasionally applying the brakes for us.
Incrementalism does a couple of important things. It forces
those uncomfortable with gay relationships to deal with concrete
questions rather than abstractions. While it's easy to oppose "gay
marriage," it's politically difficult to oppose any single one of
the benefits and responsibilities that comprise the legal status of
marriage. Sure, gay marriage will destroy civilization. But will it
destroy civilization to recognize, for example, the right to file
for state disability benefits on behalf of a mentally ill domestic
partner, as California did in 2001? It's very difficult for anyone
but the most hardened homophobe to oppose that.
Incrementalism also gives the public time to adjust to each
advance. One fear of gay marriage is that it will destabilize
families. Proceeding by degrees, we can demonstrate that measures
to shore up gay families do not threaten heterosexual ones.
With the federal government firmly in the hands of anti-gay
conservatives, and with the courts growing fearful of backlash,
it's time to pour resources into state legislatures like
California's. In a few states, like Connecticut, it may be possible
to achieve a near-marriage equivalent in one piece of legislation.
In most other states, we'll have to move gradually. There's just no
excuse now for legislative inaction in friendly places like New
York, Illinois, and New Jersey.
Think big. Start small.