Several weeks ago, the California Supreme Court set keyboards a-clacking in the offices of attorneys representing gay and lesbian couples seeking the right to marry. The court, which is considering their challenge to laws barring same-sex couples from marrying, asked for briefs addressing essentially this issue: Why are domestic-partner laws not enough?
When I was in the Assembly, I wrote AB 205, the law that substantially broadened California's domestic-partner laws, and no one knows better than I do how it falls short of marriage. I've been in a state-registered domestic partnership for more than seven years and can attest to the inequality that remains, and is unavoidable, in that separate-from-marriage system.
The heart of AB 205 was straightforward: "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties … as are granted to and imposed upon spouses."
My goal was simply to help families that had, for too long, gone without legal protections. But from its conception, I knew this was a flawed exercise. When the Legislature passed the bill in 2003, I told reporters that this "separate and unequal" system was the best we could achieve and that I would have proposed allowing same-sex couples to marry if I'd thought that would pass. I never imagined that domestic partnerships might somehow be used as an excuse not to allow same-sex couples to marry.
AB 205 secured some important rights for domestic partners, including community property, child custody and financial support after a dissolution. But the law's defects remain: It puts lesbian and gay couples in a distinct system that is inferior and confusing. Without the universal, understandable and esteemed status of "marriage," same-sex couples are not treated equally.
Throughout the state, courts are wrestling with partnership questions. When a domestic partnership ends -- the equivalent of a divorce -- how should a court divide the pension one partner accumulated during years on a job? Will widowed partners be protected against property tax reassessment? Will partners be protected if their registration was defective, the same way spouses are if there was a mistake on their marriage license?
Even though AB 205 required the state government to treat domestic partners as spouses, constituents often told me how they were refused when they asked for health insurance for their partners. Some employers eventually backed down. But public shaming is sometimes the only way gay couples can secure the same benefits that married heterosexual co-workers receive without question. Is this fair? Equal?
Ask Mary, who saw her Altadena home reassessed and her property taxes mushroom on the death of her partner, Jody, after a lengthy illness. Surviving heterosexual spouses are protected from property reassessment. Or ask Brad, an attorney who found himself arguing with his employer -- ironically, the state government -- which refused to change his income tax withholding. The personnel office mistakenly assumed that he could not adjust his withholding to account for his domestic partner.
The fact is, we discover new problems all the time. Consider the ruling two weeks ago ordering an Orange County man to continue paying alimony to his ex-wife, even though she is now in a registered domestic partnership with another woman. This session, the Legislature is considering three bills to resolve other gaps, ambiguities and inequities -- and that's not unusual. We have needed multiple pieces of legal patchwork every year since 2001, when domestic partnerships went into effect.
I am convinced that it is time for the obvious solution: Give same-sex couples equal access to civil marriage. Massachusetts and five countries, including Spain and Canada, have already done it. The ground has not cracked open beneath Madrid's Plaza del Sol. Boston has not sunk into its historic harbor. Perhaps more to the point, the presence of married same-sex couples has been both joyous and normalizing in those places.
In Massachusetts, three years after gay couples began exchanging vows, the backlash has been minimal. On June 14, that state's Legislature fell short of the votes needed to put a constitutional amendment banning gay marriage on the ballot. Marriage continues as strongly, and more equitably than ever. And it will here in California too.
On Aug. 17, the California Supreme Court will get its answers from the lawyers on both sides of the same-sex marriage lawsuit. Then the justices will schedule oral arguments and are expected to issue a ruling next year.
With its 1948 decision in Perez vs. Sharp, the California Supreme Court got a 19-year jump on the U.S. Supreme Court, becoming the first state judiciary to recognize the unconstitutionality of a law against interracial marriage. This time, when the court rules, it will be too late to be first -- but not too late to be just.
Jackie Goldberg is a former member of the California Assembly, the Los Angeles City Council and the Los Angeles Board of Education.