The law will follow society
Thursday, February 8, 2007
A few months ago, advocates of gay marriage were yearning for the Washington Supreme Court to impose a sudden, forced revision of accepted social norms. The justices were asked to find in the words of our law a right that had never existed — that same-sex couples should be able to marry as heterosexual couples do, with all attendant legal privileges, and that denying this was based only on bigotry and deliberate discrimination.
It was a very close thing, but five of nine justices refused. Gay marriage is not a right, they said, and denying it can have a “rational basis.” It is not discrimination and evidence of bigotry.
Or, they might have added, not necessarily bigotry. Lack of legal recognition for gay marriage, and laws written to forbid it, are not de facto evidence of discrimination. But the Legislature, which represents the people and which unlike judges can write laws, may see fit to grant some kind of legal status to same-sex couples, whether it be “marriage” or something with a different title. It could do this to right wrongs, to alleviate the obvious hardships on people whose life partnership is unrecognized in the law even as it gains increasing acceptance in society. Justice Barbara Madsen made mention of this in her lead opinion, when she admitted that the inability of same-sex couples to marry brings hardship and burdens that are undeserved.
Society’s norms are changing. The Legislature is about to recognize this. It is likely in this session to grant legal standing to same-sex couples, to recognize their partnerships and give them the ability to make some of the crucial decisions that heterosexual couples take for granted.
It will not be called marriage. Not yet. The proposed laws — one each in the House (HB 1351) and Senate (SB5336) — establish “domestic partnerships.” Same-sex couples would not marry, but register with the secretary of state. With this they gain some rights of spouses — hospital visitation and consent for medical procedures, inheritance in the absence of a will, consent for autopsies or organ donation, control of burial or disposal of remains. These are rights to basic, end-of-life decisions that should be held by loving couples as a matter of course. To deny them to lifelong partners is perhaps not recognized as discrimination in the court’s eyes, but it is burdensome and cruel.
This measure may well pass in this session, and the governor is very likely to sign it into law. Given the changes we have already seen in social acceptance of same-sex couples, it will not be revolutionary. For most of us, it won’t change much of anything. It will simply take a step that is humane and just.
Critics call this gay marriage by another name, but it is not. The rights and obligations of married couples are far more extensive and complex. It won’t change the institution of marriage as we have come to know it. It won’t alter religious beliefs or change church policy or canon.
Critics will say this is a step toward gay marriage, and in that they may be right. But it is not a step society is being forced to take. It won’t come by court decree or clever legal reasoning. The Legislature may not be trailing social culture by much, but it is certainly not leading it. It goes where we go, and the concept of marriage has always changed with time, and it still is changing and that is not to be feared.
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