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Same-Sex Marriage–A California Family Lawyer’s Perspective on the Issue

After reading the Los Angeles Times article “Polls: Americans closely divided on same-sex marriage” today, I felt compelled to write a post blog about this issue–because, ironically, it’s at the heart of divorce.    In almost all cases, we see the fight as only between the advocates of same-sex marriage and the objectors to same-sex marriage.  The typical argument made by the advocate for same-sex marriage is that it’s their constitution right to marry–and other arguments of this nature; conversely, the objectors argue that it’s not “biblical”, defining “marriage as between a man and a woman. . . . for purposes of procreation.”  Both sides have strong arguments, but in many respects, they are missing the point of “marriage.” At least in California, there is another arguments that needs to be put forward, which, dare I say it, I believe supersedes both sides of the argument. . . . it’s merely an insurance policy!

First, let’s ask this question? Why does someone marry another person? A person making a faith-based response will invariably say, “it’s in the bible–men and woman are supposed to marry to procreate.” For others, the reasons vary. Now, what about the statement, “I don’t need a piece of paper to prove I love you!” Most of us have heard this statement–no doubt from individuals who do not wish to legally formalize his/her relationship. Next thing to consider: do a couple need to marry to buy property . . . to move in together . . . to have children? Of course not. And, how many people do we personally know who didn’t marry for purposes of procreation–the elderly couple who “found love” and married for the second time . . . the couple who married but decided to not have children . . . the couple who married knowing that their partner could never have children . . . and since we live in California, let’s not forget the 90-year-old billionaire who marries the 20-year old model? Were these unions for purposes of procreation? And if we combine church and state and apply the biblical standard, does this not mean that these individuals should be prohibited from divorcing? And, final question–to the Catholics (which includes me), if a couple marry through the church, and procures a California divorce–are they not still considered married through the church? As all Catholics know, California law recognizes the couple divorced and free to remarry, but the church does not.  “In the eyes of the church”, they are still considered husband and wife.

For those of you reading this blog post who are married (Christians, atheists, etc.), answer this question: what changed after you married? Think about it! Except for maybe putting each other on your respective health-insurance policies, not much else changed. (I’m sure that even before you married, your family considered your spouse as your “partner”–and acknowledged and welcomed that person into their hearts before marriage.

As you ponder my questions, let me propose to my reader that a civil marriage is nothing more than an insurance policy that does not go into effect until there is a “death” of the marriage or of a spouse. Let me share a true story: in the mid 1990s, I was working as a law clerk at an insurance-defense firm in Fairfield, California. Our law firm represented a funeral home–the defendant in the civil matter.The plaintiff was the decedent’s mother. Here’s what happened: John and Jane married in 1985. Their marriage resulted in one child. A few years later, John and Jane divorced. A few years after that, John started dating Mary, and a few months after that, John and Mary were engaged. One day, while dirt-biking, John was killed. It was a freak accident. The players: Jane–ex-wife; Bobby–the 8-year-old son; Mary–the fiance’ and Helen–the grieving mother. The funeral director asked family members whether John was going to be buried or cremated. Grieving Mom and Mary the fiance’ stated that John wanted to be buried and the ex-wife stated that John had  expressed to her during their marriage, a desire to be cremated. You should be asking yourself, what right does the ex-have to say anything about the matter?! Here’s the problem, the son was John’s “next of kin” and had the legal right to make the decision about his father’s remains; however, because Bobby was a minor, and his mother was his guardian, Jane was allowed to speak on Bobby’s behalf. So, what happened to John’s body? It was cremated! By law, neither the fiance’ nor the grieving mother had any say in the matter. While alive, Mary and John were free to do anything–have babies, buy property, live together . . . everything–even if not married. They didn’t need a marriage certificate to live their lives, but they needed a marriage certificate to assert their legal rights.

In reality, and from my experience as a family law attorney, the reason people marry, whether they know it or not, is to create (or activate) their respective legal rights and legal responsibilities–that a person would not have if they did not marry.

Below is a partial list of legal rights that are activated by marriage:

  • Have decision-making powers if the spouse is unable to speak for themselves, e.g. comatose in a hospital;
  • If no Will created, 100% entitlement of the community estate upon death and a share of the separate property;
  • A 50% division of all assets and debts incurred during the marriage;
  • Preference over all other family members in any crisis-based or formal or legal situation
  • The default beneficiary on any life-insurance policy
  • If facts and evidence in support, entitlement to spousal support

If you think about it, all the situations above relate to death (or impending death) and divorce. That’s it!  Consider this: For those who argue that it’s a “biblical” thing that marriage is for purposes of procreation and between man and woman only, then doesn’t this mean that couples (christians, atheists and so on) could never divorce, because doesn’t the priest (or rabbi) state, “until death do you part?”  Wouldn’t this mean that the State of California should also prohibit Christians and other proponents of Prop 8 from divorcing?  (Don’t answer this question–it’s just a rhetorical question.)

In each and every California divorce, the existence of a marriage is for only one purpose–to divide the assets and debts, spousal support and dissolve the marriage. And as most people know, a couple doesn’t need to marry to fight over custody, child support and visitation issues.

Something for the supporters of Proposition 8 to consider: marriage holds the parties accountable and responsible to each other and for their actions. For example, if a same-sex couple lived together for 30 years–with one partner being a stay-at-home partner and the other partner the full-time work.  If the working partner dies without a will, then by law, all the decedent’s assets will go to his “next of kin”–which are usually his/her parents or siblings.  Who then is responsible for caring for and providing for the surviving (aged) partner?  Since he can’t receive benefits from the decedent’s estate, because they were never married, this means he will need to apply for public assistance! This means WE all pay for his support.

So, in the end, marriage is about the creation of legal rights and responsibilities as they are applied to  divorce and death.  Civil marriages only create legal rights and responsibilities . . . an insurance policy.  (I would be the first to agree that a religious marriage creates much more than basic legal rights and responsibilities.)

Final thought: what about the argument that there is no need for same-sex marriages because same-sex couples can register their domestic partnership with the State of California.  “They” have the same rights that married couples have. In an ideal world, everyone would understand the term “domestic partners.” Speaking only for myself, I can’t tell you how many times I receive calls from people asking me to explain the concept because they don’t understand it. For example, a person called me saying that the hospital staff excluded him from seeing his registered domestic partner in the hospital because “the family” told the hospital staff that they did not want him to see the hospitalized family member. He then told me that he explained that he was the person’s “domestic partner.” He even attempted to explain the legal significance.  The hospital staff was not persuaded. Everyone understands the concept of marriage, even children, but only few people understand the legal term “domestic partner” and what it legally means.

Technically speaking, domestic partner means someone a person lives with to which there is a partnership regarding their relationship and living situation. Because of this broad interpretation, I have received countless calls from same-sex and heterosexual couples telling me that believed that had “legal rights” because they were “domestic partners”–as they (erroneously) believed because they lived together, they had created legal rights to each other’s assets and entitlements to spousal support.

In summary, it’s one thing to argue the pros and cons of sex-sex marriage; however, it’s another thing to deal with these issues on a day-to-day basis. From my experience, depriving same-sex couple’s from “marrying” and relegating same-sex couple’s to “domestic partners” creates chaos and confusion–for everyone and, in the end, affects everyone.

If a couple can divorce based on “irreconcilable  difference” (translated to mean, for practical purposes “no reason”) isn’t the equivalent of this, at the other end of the spectrum, to be able to get married for “any reason” And, if we advance the Prop 8 proponents, if marriage is between man and wife for purposes of procreation, then shouldn’t this also means that it’s until “death do us part”–which would mean that the couple should be prohibited from procuring a California divorce!

Next time, I will write about why I am against polygomy.

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