COMMENT: Gay marriage in America – two steps forward, one step back

Libby Post May 13, 2008
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I’m not a big game show watcher. But I do know that you get to spin big wheels on The Price is Right and Wheel of Fortune. Sometimes you hit the jackpot, sometimes you land in a good spot and sometimes you get skunked.

And that’s exactly what it’s like fighting for lesbian and gay marriage equality in America.

With three spins of the wheel last week, we landed in two decent spots and got skunked once.

Out in California, while folks are waiting on pins and needles for the state’s highest court to decide on the legality of same sex marriage, the state’s Court of Appeal ruled last Tuesday that when it comes to believing you were in a registered domestic partnership, you have the same rights and responsibilities as straights who thought they were legally married.

It seems that Darrin Ellis thought that his ex-partner had sent in the fully completed, signed and notarised paperwork of their domestic partnership to California’s Secretary of State. He trusted his ex, David Arriaga – a common mistake.

It turns out Arriaga never mailed it in.

When Ellis went to legally dissolve the partnership and get the assets from the relationship he thought he was legally entitled to, he found that the domestic partnership he thought he had never legally existed.

Arriaga, on the other hand, asked the trial court handling the dissolution to dismiss it because the couple’s relationship was never legally recognised.

The trial court complied and that’s when Ellis reached out to Lambda Legal, America’s largest LGBT legal rights organisation.

Tara Borelli, Lambda’s staff attorney handling the case, argued that AB 205, California’s domestic partner law, gives same-sex couples the same protection under the state’s “putative spouse doctrine” as people in heterosexual relationships who believed they were married only to find out later that their marriage was not valid.

In what I can best describe as a back-handed complement, the Court of Appeal agreed with Lambda’s argument, saying jilted same-sex partners who were hoodwinked should be treated the same as jilted common law wives and husbands.

I know this is definitely a step forward, but I feel like my spinning game show wheel landed on $50 instead of $5 million.

When I spoke with Borelli, she told me that the separate and unequal system of domestic partnerships “simply isn’t going to be enough to help same sex couples. We’ll have to go to court over and over again for legal patch jobs to get the system to work.”

Fly across the country to New York State and another legal spin of the same-sex marriage wheel said that if we’re legally married in any other jurisdiction, say Canada or Massachusetts, we have to be treated as married in the Empire State.

Living in Rochester, NY, Patricia Martinez and her partner Lisa Ann Golden went to Vermont for a civil union in 2001 and then to Canada to actually tie the knot in 2004.

Martinez, who works for Monroe Community College as a word processing supervisor, wanted to add Golden to her health insurance policy.

The college refused because health benefits for domestic partners were not included in the contract the Civil Service Employees Association had negotiated for its members.

That has since been rectified.

However, before the contract negotiations began, Martinez sued.

In August 2006, the State Supreme Court agreed with the College because, as Justice Harold Galloway wrote, the state legislature “currently defines marriage as limited to the union of one man and one woman.”

Martinez appealed and the appellate judges who heard the case overturned Galloway, saying that there is no legal impediment in New York to the recognition of same-sex marriage and that those legal marriages, like Martinez and Golden’s, must be recognised as such.

This week, the Court of Appeals refused to hear the College’s appeal.

Spin the wheel one more time, land on Michigan and the news isn’t good. Because that state’s ban on same-sex marriage was written so punitively, the state Supreme Court ruled that local governments and state universities there can not offer health insurance to the partners of gay or lesbian workers.

This is the legal merry-go-round lesbians and gays live with day in and day out.

Some days we spin the wheel and win. Some days, we don’t. We’re forced to take a patchwork approach because we’re seen as second class citizens. But we’ll keep spinning our wheels until we hit the jackpot—liberty and justice for all.

© 2008; All Rights Reserved.

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