Marriage isn't the half of it

Four years ago, when San Francisco Mayor Gavin Newsom declared by fiat that the state's ban on same-sex marriage was unconstitutional, television cameras captured for the whole world the images of gay and lesbian couples inundating the streets outside City Hall. In less than a month, more than 4,000 same-sex couples wed there, until the California Supreme Court stopped the weddings and later declared the marriages invalid. The court said it would willingly hear a constitutional challenge brought in a more orderly fashion.

On Tuesday, the court will follow through on its offer, hearing oral arguments in the cases of 23 same-sex couples seeking the right to marry. Although California has a comprehensive domestic partnership law, gay rights advocates argue that the creation of that separate legal status falls short of the state Constitution's guarantee of equality.

They're right. Separate is not equal; it is a mark of second-class status.

But the quest for marriage rights has obscured a more fundamental problem in the law. Marriage is a bright line dividing relationships that matter from those that don't -- and it shouldn't be. Retirement and death benefits, hospital visitation and medical decision-making, employee benefits, the ability to use sick or family leave, division of assets when a relationship ends and tax levies are just a few examples of laws granting "special rights" based on marriage.

Marriage is no longer the only way people organize their families and relationships. State-recognized domestic partnerships aren't a good legal dividing line either. Those just extend rights to a few more people without questioning why such couples have these legal rights in the first place.

The law should value the families and relationships that people value. So a better approach is to ask why a particular law exists and then include within the law all the relationships appropriate to that purpose.

Consider this: On Nov. 12, 2001, American Airlines flight attendant Joe Lopes died in a plane crash near Kennedy Airport. He was survived by a partner of 20 years, Bill Valentine. The couple had met in San Francisco; when Joe was transferred to New York in 1984, they relocated. After Joe's death, when Bill applied for workers' compensation death benefits, his claim was denied because he was not Joe's "surviving spouse."

Bill's story is one of many that drive gay rights advocates to fight for access to marriage. Had Joe and Bill been married, they say, Bill would have received these benefits.