Marriage isn't the half of it

But Bill would have received survivors' benefits if Joe hadn't been transferred. That's because California bases entitlement to workers' compensation death benefits on total or partial economic dependency; marriage is not a prerequisite. That scheme is instructive. The purpose of the law is to compensate for the loss of an economic provider; limiting benefits to married couples frustrates, rather than furthers, that purpose. California should update other laws, such as the ability to sue for wrongful death, with this in mind.

Rigid distinctions in the law between married couples and everyone else are leftovers from an earlier time. Forty years ago, sex outside marriage was often unlawful; children born outside marriage were legal outcasts; husbands and wives had distinct legal roles; divorce was unusual and required one "innocent" and one "guilty" spouse.

The social and cultural changes of the 1960s and '70s produced a seismic transformation of the law of marriage. The gender script got torn up. Nonmarital children achieved equality. Marrying became more optional and divorce more ordinary. Laws that continue to single out marriage often bring unwarranted hardship upon people whose family lives do not revolve around that one-size-fits-all model.

Same-sex couples often say they want the right to marry to ensure that they will have decision-making powers for each other in a medical emergency. The purpose of any law in this area is achieving what the patient would want. But privileging marriage doesn't assure this outcome. A study published in 2006 in the Journal of General Internal Medicine surveyed outpatient clinic patients in Chicago about their choice for a healthcare decision-maker: 33% of married people said they would pick someone other than their spouse.

California has taken one step in the right direction. It is one of a handful of states with a registry for Advance Health Care Directives that identifies a person's choice of surrogate medical decision-maker. It should next follow Idaho's lead and issue cards that allow any hospital to access that information by computer immediately. If enough other states follow suit, there will be impetus to create a nationwide registry. Then everyone -- gay and straight, coupled and not, in states that ban same-sex unions and those that allow them -- can have the peace of mind of knowing that their choice of surrogate decision-maker will be respected.