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A more legal union

August 24, 2005

AS THE POLITICS OF GAY MARRIAGE become increasingly contentious, the legalities of it are becoming increasingly mundane. While gays still do not have the right to marry in California, they have most of the rights and responsibilities of marriage. The question is whether -- or when -- the legal progress will lead to a political backlash.

On Monday, the California Supreme Court ruled in three separate cases that gays and lesbians who have children have the rights and obligations of parenthood. Each decision, which followed by a few weeks the court's ruling that businesses must give domestic partners the same privileges and services they extend to spouses, involved lesbian couples who had children and subsequently broke up. In each, the court ruled that both women were considered to be the children's parents. Thus, they could claim rights such as visitation, custody and so on.

The three decisions were full of references to such laws and doctrines as estoppel, subject matter jurisdiction and the Uniform Parentage Act. None of these, it goes without saying, are especially interesting, much less divisive. As a result, both sides of the gay-marriage debate have focused their attention on the first sentence of Page 10 of the decision in Elisa B. vs. Superior Court. "We perceive no reason," it reads, "why both parents of a child cannot be women."

In those 13 words is an almost perfect Rorschach test: Opponents of gay marriage find them condescending; supporters see them as courageous. But they are neither; they are simply the logical result of a legislative process that has been taking place in California for years. Just a few sentences later, in fact, the decision cites the relevant statute, which became effective Jan. 1: "The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses."

This is not the last time the state Supreme Court will be called to rule on gay marriage; a case challenging the state law that defines marriage as between a man and a woman is expected to reach the court next year. Meanwhile, opponents of same-sex marriage have stated their intention to scale back benefits for registered domestic partners.

As this debate proceeds, the public should be skeptical of claims that the courts are usurping the role of the Legislature; in these cases, they are simply following it.

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