Cal­i­for­nia

Everybody’s got their knick­ers in a twist over the Cal­i­for­nia Supreme Court’s recent rul­ing that Prop 22 (a pop­u­lar ini­tia­tive to enact a statu­tory ban on same-​​sex mar­riages) was uncon­sti­tu­tional under the Cal­i­for­nia State Constitution’s guar­an­tee of equal pro­tec­tion. The court declined to recon­sider, and also declined to issue a stay of its order direct­ing state offi­cials to stop deny­ing mar­riage licenses to oth­er­wise eli­gi­ble same-​​sex cou­ples. Appar­ently, same-​​sex cou­ples started get­ting mar­ried a few days ago.

My posi­tion on gay mar­riage is that equal pro­tec­tion does not, in this case, jus­tify expand­ing the wel­fare state, because all (or very nearly all, more on that below) the legit­i­mate fea­tures of mar­riage are already avail­able to same-​​sex cou­ples as a func­tion of pri­vate contract.

Both sides of the gay mar­riage debate have been irked by one thing or another in this mess. Pro gay mar­riage activists were upset when, in 2007, the Cal­i­for­nia leg­is­la­ture passed leg­is­la­tion (AB 43) to over­turn Prop 22, but Gov. Schwarzeneg­ger vetoed it, say­ing he wanted to wait for a court rul­ing. Turns out, this was the right thing for him to do, because Prop 22 could not be repealed by an act of the leg­is­la­ture. The Cal­i­for­nia State Con­sti­tu­tion pro­vides that statutes enacted by pop­u­lar ini­tia­tive can only be repealed by another pop­u­lar ini­tia­tive. Nei­ther the leg­is­la­ture nor the Gov­er­nor had the power to enact AB 43, so Schwarzeneg­ger was quite right to defer the ques­tion to the court.

Cal­i­for­ni­ans have another pop­u­lar ini­tia­tive set for the Novem­ber bal­lot to enact a con­sti­tu­tional ban. (Prop 22 was a statute, not a con­sti­tu­tional pro­vi­sion.) This would over­ride the Cal­i­for­nia Supreme Court’s deci­sion and allow state offi­cials to refuse to grant mar­riage licenses to same-​​sex couples.

In the mean­while, California’s lib­eral welfare-​​state ben­e­fits will be greatly expanded. If I were one of those peo­ple who had noth­ing bet­ter to do, I’d find it quite inter­est­ing to cal­cu­late up the actual cost to the Cal­i­for­nia tax­pay­ers in addi­tional state entitlements.

Of course, the Cal­i­for­nia same-​​sex mar­riages con­ducted between now and Novem­ber are still not the same thing as straight marriages.

Fed­eral

Because, of course, the biggest marriage-​​related wel­fare ben­e­fits come from the Fed­eral gov­ern­ment, which has the DOMA, which bans Fed­eral recog­ni­tion of same-​​sex mar­riages. So just because you’re gay and mar­ried in Cal­i­for­nia (or Mass­a­chu­setts) doesn’t mean you get the same stuff straight cou­ples do.

But in an inter­est­ing twist, the Bush Admin­is­tra­tion (specif­i­cally the Office of Legal Coun­sel, who rep­re­sent the Exec­u­tive in legal mat­ters) has taken a legal posi­tion rec­og­niz­ing (sort of) a civil part­ner­ship per­formed in Ver­mont for some Social Secu­rity purposes.

In a recent opin­ion let­ter, the Office of Legal Coun­sel deter­mines that a child of a same-​​sex part­ner­ship formed under Ver­mont law may receive the non-​​biological parent’s Social Secu­rity Child’s Insur­ance Ben­e­fits, even when the parent-​​child rela­tion­ship between the non-​​biological par­ent and the child was cre­ated by the civil union, not by adoption.

See, Child’s Insur­ance Ben­e­fits are paid regard­less of the mar­i­tal sta­tus of the par­ent. They are granted based on the child’s abil­ity to inherit under state law. Ver­mont allows chil­dren of same-​​sex unions to inherit from both the bio­log­i­cal par­ent (if any) and the non-​​biological par­ent. Once state law cre­ates that rela­tion­ship, it becomes a legal rela­tion­ship inde­pen­dent of the one between the par­ents. So the Fed­eral gov­ern­ment ends up rec­og­niz­ing the parent-​​child rela­tion­ship cre­ated under Vermont’s civil union law.

What this means now is that a mar­ried gay person’s Social Secu­rity ben­e­fits can go to his spouse’s child, but not to his spouse.

Of course, Social Secu­rity should go away. It is forced wealth redis­tri­b­u­tion. But it sure is inter­est­ing how these things work.

One Last Thing

My oppo­si­tion to leg­is­la­tion specif­i­cally autho­riz­ing gay mar­riage is based on the fact that it is unnec­es­sary — all the legit­i­mate fea­tures of mar­riage can already be accom­plished through pri­vate con­tract, and the ille­git­i­mate fea­tures of mar­riage aren’t some­thing I’m will­ing to tol­er­ate in the name of equal pro­tec­tion. How­ever, I’ve been think­ing about it, and I may have found one legit­i­mate fea­ture of mar­riage that can­not be achieved except through state-​​sanctioned mar­riage: the spousal evi­den­tiary priv­i­lege. That’s the rule that says that no one may be com­pelled to tes­tify against his spouse in court. I hope to write more about this after I’ve learned a bit more about it.