Marriage and Tax: California action

What a wonderful happening for the afternoon of the day that I have almost finished grading corporate and partnership tax exams and can return to regular blogging and other important activities!  The California Supreme Court has just announced its opinion in "In re Marriage Cases" that marriage is a fundamental right that cannot be denied to same-sex unions. 

As New York Times coverage of the oral argument before the California Supreme Court in March indicated, the definition of marriage is at the heart of the case.  See Adam Liptak, Definition of Marriage is at Heart of California Case, New York Times, Mar. 5, 2008.  It has been four years since the Massachusetts high court reached a similar decision.   One hopes that eventually this great country will realize that this inclusionary approach is the right answer both morally and legally.  We need to recognize this right across the nation and repeal the "Defense of Marriage Act" that denies privileges under the federal income tax laws (and all other federal laws) to same sex couples that are enjoyed by opposite gender couples.

The past few years, however, have seen some states trending in the opposite direction, towards a religion-based notion of "traditional" marriage that seems based on ideologies not unlike the laws from an earlier time that prevented interracial marriages, an era finally brought to a close by the U.S. Supreme Court decision in Loving vs Virginia.  These states--like my new home in Michigan in 2004--have regretably enacted constitutional amendments that purport to "protect" marriage by declaring that marriage may only be between a man and a woman.  Now, anyone who knows anything about human nature knows perfectly well that these rules have nothing to do with "protecting" marriage and everything to do with discrimination that intends to prevent gay couples from enjoying various tax and other benefits (employment-related benefits like health insurance, legal benefits like adoption or inheritance rights, etc.) that accrue to a commited legal relationship recognized by state and federal governments.   They represent a regrettable tendency to let certain religious standards dictate rules restraining the modern concept of family. 

My view, stated before on this blog, is that the law has no business making distinctions among its citizens in terms of their decisions to enter into committed intimate relationships.  If a particular religious institution wishes to make such decisions, it may do so:   it may sanction and perform only those marriages that it supports, but it has no business dictating the possible status for committed relationships for people outside that religion.  Let the law deal reasonably with the types of relationships that are indeed customary in our society, and let the churches and synogogues and other religious institutions further commemorate whichever of those relationships they wish to recognize.

Recently, the highest court in Michigan purported to apply a "plain meaning" approach to the Michigan constitutional amendment to conclude that public employers in the state cannot even contract with their employees to provide health insurance benefits to domestic partners, because that would violate the marriage protection amendment.   As a lawyer who is a linguist by training, I have always found "plain meaning" arguments highly questionable.  They essentially permit judges to claim that they need not apply legal analysis but rather can rely on their mere understanding of language--often aided by selective use of dictionary definitions--to resolve the statutory or constitutional interpretative question at issue.   At its worst, in other words, plain meaning analysis is a way to bypass legal analysis and uphold what may well be an ideologically desired outcome based on a claim that anyone reading the legal text would conclude that the outcome is the only reasonable one, based solely on the reader's basic understanding and use of language. 

The Michigan supreme court applied that kind of dictionary-based, context-disregarding interpretative approach to the constitutional amendment.  It tossed off the fact that proponents of the amendment had marketed the amendment by specifically stating that passing the amendment would not affect the ability of public employers in the state to provide benefits to same-sex employee partners. 

Decisions such as those in Michigan undermine the fundamental policies of democratic egalitarianism, while the California outcome points the way towards a brighter future when our states and citizens can recognize the need for inclusionary rather than exclusionary approaches. I can only hope that eventually we will both remove the offending amendment from the state constitution and install judges who have a genuine respect for the diverse citizenry that they serve.

Comments

[John]

A few thoughts on this:
1. Gays who want the right to get married should be careful what they wish for (just kidding).

2.Of course, the current laws outside of MA and CA are descriminatory and can not stand. Gay marriage recognized by the law is a matter of when, not if.

3. Those who think that gay marriage will "destroy" the institution of marriage are no different from those who supported laws to ban inter-racial marriage.

4.Our politicians, in both parties, will not have the backbone to stand up to an intolerant majority to protect the rights and freedom of a minority - for at least another 30-years. (Hope I'm wrong about this.)

[LindaMBeale]

John, I agree wholeheartedly on 2 and 3, but I do hope you are wrong on 4 (though I definitely share your concern). The majority that is in favor of discrimination against gays is dwindling faster than I thought it would 10 years ago, so maybe there is hope for a full turnaround in another decade at most.