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OutRight: Step by Step

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The California model shows how to secure legal protection.

By Dale Carpenter

The two guideposts in the battle for gay marriage in the coming years must be federalism and incrementalism. Federalism means focusing on the states (as I discussed in my column last month). 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 convincing 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 governor 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 revolu-tionary 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 Grey 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 antigay 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.

Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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