Why should we care about the Proposition 8 same-sex marriage trial in San Francisco? Most people aren’t gay or lesbian. Many think marriage is unimportant. Others feel Afghanistan, unemployment, Haiti and health care are much more deserving of attention.
Proposition 8 struck down a California Supreme Court decision allowing same-sex couples to marry. The proposition’s constitutionality is being challenged by a lawsuit in which the lead defenders of same-sex marriage are conservative Theodore Olson and liberal Democrat David Boies, who opposed each other in Bush v. Gore in 2000.
We should be cheering for them. When same-sex couples are denied the right to marry, they are treated unequally by the law, viewed as lesser human beings. “Legalizing same-sex marriage would … be a recognition of basic American principles and would represent the culmination of our nation’s commitment to equal rights,” Olson wrote in Newsweek.
A hero to the right when he won Bush v. Gore, Olson now finds himself fighting the fundamentalist Christians who helped George W. Bush win that narrow election.
In this trial, Olson, Boies and the others on their team are establishing the legal groundwork for an eventual hearing before the U.S. Supreme Court. That’s where this case is headed, most legal experts agree. It’s unlikely that the court, with its present composition, will legalize gay marriage in the United States. But Olson thinks there’s a chance.
No doubt a major weapon will be the presentation of overwhelming evidence of unequal treatment of gays and lesbians.
Under the Defense of Marriage Act, signed in 1996 by President Bill Clinton and supported by President Barack Obama, the federal government does not recognize same-sex marriage.
Aside from frustrating all the gays and lesbians who might want to marry, the ban on same-sex marriage is particularly unfair to those who married in the five states that recognize such marriages and the 18,000 wed in California before the passage of Proposition 8. Even though they have rights in their home states, they do not have them in the rest of the country or in their dealings with the federal government.
I talked about this with Jackie Goldberg, one of the nation’s most influential gay and lesbian activists. As a member of the California state Assembly, she was the author of the state’s domestic partner law. While a University of California student, she was a leader of Berkeley’s free speech movement. She fought for desegregation of Los Angeles schools as a school board member and served on the Los Angeles City Council. She and her longtime partner, Sharon Stricker, were married during the short time such unions were legal in California.
Even though Goldberg and Stricker have a legal marriage in their own state, they are denied a wide range of federal benefits. If Goldberg dies, “none of my benefits will go to my spouse,” she said. These include survivor benefits for Social Security and related programs. Also, same-sex couples do not get as much aid for the needy aged, blind and disabled as straight men and women who are married.
Married heterosexuals are eligible for Medicaid even though only one spouse is ill. That doesn’t apply to legally married same-sex couples, according to the Government Accountability Office. Only heterosexual married couples are eligible for federal low-income housing subsidies or assistance for purchasing affordable housing.
Nor are same-sex married couples eligible for a variety of veterans’ spousal and survivor benefits, including pensions, indemnity compensation for service-connected deaths, medical care, nursing home care, right to burial in veterans cemeteries, educational assistance and housing. The same is true in the case of survivors of nonmilitary federal workers.
In addition, federal tax law discriminates against gay and lesbian married couples. Their gifts to each other can be taxed, as can property transfers from one spouse to another. They are denied the tax advantages of filing a joint federal return.
In all, the GAO counted more than 1,000 federal statutes in which marital status plays a part in determining various federal benefits, monetary and otherwise. Domestic partnership counts for nothing in the eyes of the federal government.
All of this is powerful evidence of unequal treatment. But there’s more to the story than legalities. As Olson wrote, “We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.”
Goldberg also talked about community. “Part of the reason that people get married in public is because it is a way of saying we are establishing a family in this community,” she told me. In the past, she performed marriages of opposite-sex couples. “I used to ask the audience to make a commitment to this couple that they recognize the importance of this and will support them when times get tough,” she said.
Although they had been a couple for some 30 years, getting married and becoming part of such a community, with its rights and obligations, was profoundly moving to Goldberg and Stricker.
“It shocked me how emotional I was; I was stunned. We both were crying,” Goldberg said.
The U.S. Supreme Court doesn’t make it easy to follow the trial, having voted 5-4 against permitting a delayed video on YouTube. But you can learn a lot from live blogging on the Prop 8 Trial Tracker and firedoglake. Check them out.
AP / Marcio Jose Sanchez
Stuart Gaffney, left, and John Lewis, same-sex partners for 22 years, outside the federal courthouse in San Francisco on Jan. 11.