California leads on civil unions

By E.J. Graff, 9/29/2003

WHILE THE MEDIA are entertaining us with the California recall circus, they've overlooked a different story: The Golden State recently leapfrogged the rest of the United States in protecting lesbian and gay pairs. California's new ABM (All But Marriage) law is just as comprehensive as Vermont's civil union law, but far more significant. That's true in no small part because its 34.5 million citizens make up 12 percent of the nation, vastly outnumbering the 630,000 souls shivering away in the Ben & Jerry's state.

Vermont has 776 unionized couples. Compare that to 22,000 California couples who've already signed on to an earlier, spottier version of its registry, with more to come once the legal upgrade takes effect. On Jan. 1, 2005, when Betty and Wilma sign on California's dotted line, they'll have almost all the rights, benefits, and obligations that state imposes on spouses.

No justice of the peace will pronounce them wife and wife, but they'll get just about everything else California can offer. From shared debts to burial rights, from child custody to community property, registered same-sex partners will be next of kin, so long as they don't leave California.

It still isn't marriage -- not by a long shot. In the eyes of the IRS, INS, Social Security Administration, and the rest of the federal alphabet soup, Betty and Wilma will still be legal strangers. So far, only the magic M-word can trigger the ability to sponsor a beloved for immigration, pass on Social Security benefits, and so on.

According to a May 2003 Gallup poll, 62 percent of Americans think it only fair that same-sex couples should have those essential protections, but California hasn't made that possible. Nor is it likely a California registered partnership will travel across state lines: A registered pair may still be strangers in a Utah emergency room or a Nevada probate court.

Still, never before has an American state so thoroughly stood up for same-sex couples without judicial coercion. Vermont's Legislature passed and its governor signed civil unions under a mandate from that state's Supreme Court: under the 1999 Baker v. Vermont ruling, Governor Howard Dean & Co. did the least they could.

Au contraire for California's elected officials. Each year since 1999, California's Legislature and governor have jointly and voluntarily added meat and meaning to a statewide partnership registry. The recent addition takes the registry as far as it can go without the verboten M-word, which voters took off the table in a 2000 referendum. And His Embattledness Gray Davis signed the law in a public ceremony, clearly believing it'll bring him some crucial votes.

The right wing has for too long been whining about "unelected judges" imposing its elitist philosophy of liberty and justice for all. Last I checked, protecting minority rights was high up in a judge's job description. But in recall country, the judges didn't have to. The people's representatives supported near-equality by a nice healthy margin -- in no small part because, according to a 2003 Field Poll, upwards of 65 percent of the state was in favor.

So where's the outrage that's supposedly bubbling away in the heartland? Where are the papal pronouncements, the evangelicals' apocalyptic prophesies, the chest-thumping on attack radio, the ridicule from Fox News?

Here's a cynical guess: This summer's thunder-and-lightning punditry on same-sex marriage was ginned up to fill the vacation-season news slowdown. Except in the deep South, Americans strongly favor equal rights for gays, although only in the Northeast states do majorities think same-sex couples deserve the veil-trailing word. There was no summer "backlash" after the sodomy law repeal; the poll that supposedly revealed one was confusingly worded and widely misunderstood. By now, the media are too occupied with Arnold et al. to bother with the homosexual menace. And most Californians just don't care.

Legislatures in Connecticut and Rhode Island have, for the past few years, been considering something similar to the California approach. Same-sex marriage activists there, take note: Much can be accomplished incrementally, as legislators and citizens see that fairness won't bring on locusts, boils, plague, et al. Unfortunately, there's little hope that the hamstrung Massachusetts Legislature will do the same. Fortunately, we've got a same-sex marriage case waiting in front of our top court. Let's hope the Massachusetts Supreme Judicial Court rereads its job description, and decides to go California one better -- delivering those Boston marriages soon.

E.J. Graff, author of "What Is Marriage For?" is a visiting scholar at the Brandeis Women's Studies Research Center.