The tiny but formidable Senator Carole Migden has hit the headlines again with her latest bill, SB 11. This bill would expand California’s Domestic Partnership Program to allow opposite-sex couples to register for domestic Partnerships.
Under existing law, heterosexual couples are ineligible to register for domestic partnerships unless at least one partner is over the age of 62. Seniors are allowed to register for domestic partnerships in lieu of marriage because they may want to avoid marriage in order to protect their benefits. Gay couples are totally ineligible for marriage in California but may instead obtain a domestic partnership which now affords all the rights and responsibilities that the state provides to married couples.
Still, domestic partnerships are considered differently under both state and federal law. Federal law does not recognize domestic partnerships at all and provides none of the benefits of marriage to such couples. State law allows for a much easier, faster, and often less expensive dissolution of a domestic partnership as compared to marriage.
The California courts have been reviewing Gay marriage laws in California since Mayor Gavin Newsom began to allow such unions in San Francisco two years ago. Most recently, the California appellate court ruled that California laws prohibiting same-sex marriage are non-discriminatory in part because Gay people may marry in heterosexual unions and because even if they choose to couple with those of the same sex, California provides all of the benefits of marriage in an equal institution (domestic partnerships).
Migden’s stated motivation for SB 11 has been to provide a marriage alternative to heterosexual couples. Many unwed mothers in this state currently cohabitate in a family unit with a father. Domestic partnerships would provide a more stable environment for the rearing of children, would allow both adults to share in employment benefits, offer each the ability to make critical medical decisions when the other is incapacitated, among other benefits. These changes could be extremely beneficial to nontraditional family units.
However, Migden could very well have another motive: a demonstration that marriage and domestic partnerships are separate and unequal institutions. Clearly there must be a difference if a number of people given a choice would predictably choose to engage in one form of partnership instead of the other. Further, it would increase the disparity by allowing straight people to choose between marriage and domestic partnerships but still only allow Gay people to obtain domestic partnerships. Already, the Christian conservative right in California have cried out claiming that this expansion of domestic partnerships is an all-out assault on traditional marriage.
This demonstration that marriage and domestic partnerships are inherently different institutions and that gay people are only allowed to obtain domestic partnerships while heterosexual people are able to choose between the two might spur the California Supreme Court to recognize the difference between the two when they take up the issue next year.