More on Gay Marriage


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 Turns out, this was the right thing for him to do, because Prop 22 could not be repealed by an act of the legislature. The California State Constitution provides that statutes enacted by popular initiative can only be repealed by another popular initiative.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.


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.

Tom G Varik