I’ve been a gay activist for decades, but I’ve never been much interested in the fight for legal marriage. I grew up in the generation that distrusted institutions of any sort. Twenty years ago my gang of left-wing politicos was more focused on fighting job discrimination and gaining acceptance from our families than legislating our domestic arrangements.
Besides, we reckoned, the high rate of divorce among heterosexuals simply highlighted some deep flaw in this time-tried tradition. Marriage didn’t seem to work for straight folks, so why should we fight for the right to ape someone else’s mistakes?
Over the last few years I sat by quietly as the pro- and anti-marriage campaigns heated up in Alaska, Hawaii and Vermont and then, finally, here in California. Certainly I voted against the Knight Initiative, which declared that California would only recognize marriages between a man and a woman, and I rallied my family to vote no as well. However, while lauding other countries as they established rights for gay couples, I remained fairly removed from the political struggle to legislate for those rights here at home. Still, I happily attended a handful of queer weddings, some as familiar and traditional as any straight celebration (two white gowns complete with veils) to the extreme (think hang gliders), though I never coveted one myself.
But then, as is so often the case in anyone’s political flip-flop, an event in my life shocked me into changing my laissez-faire attitude.
Several years ago, my partner of six years died suddenly. I was devastated, of course. But almost immediately my shock was doubled when I discovered the way our relationship was perceived — or not — by the powers that be. Though I was registered at her work as her domestic partner, after her death I wasn’t legally allowed even basic courtesies. To make arrangements for her body I needed to get written permission from a member of her family, the closest of whom lived several states away.
And then, because her will could not be located, I was stripped of all dealings with any aspect of her property. California’s probate law dictates that upon death all arrangements and inheritance are left to a spouse. Without a legal “spouse” — or children — all powers and inheritances are awarded to the parents. So, my partner’s estate fell by default into the hands of her father, a man who lives in the Middle East and who not only showed no interest in attending funeral services, but also never inquired about the arrangements made for her remains. Despite knowing me for years, almost immediately he made it scarily clear that he wasn’t about to recognize me as his daughter’s partner or heir. I will never forget my first dealings with the probate lawyer he hired: a man who asked me to make a list of what in our house was “hers.”
Because of this injustice — and because I am absolutely certain of what my partner would have wanted — for the first time in my life I have stepped onto a legal battleground. For the past two years I’ve been ensnared in a lengthy and costly court battle. It’s been painful beyond explanation, but in the struggle I’ve been flanked by two wildly talented and smart gay attorneys, both committed to the legal acknowledgment of the rights of gay couples. Ultimately a jury will make the final judgment about my relationship, and sadly so. Whatever the outcome, a courtroom is an ugly venue for such decisions.
But now I’ve signed on as an activist for gay marriage. When people wax on about gay marriage they often espouse poetic ideals about whether gays and lesbians are able to forge the same bonds as our heterosexual neighbors and friends. They blather on about the perceived transitory nature of gay relationships. (And here one might offer up that truism learned in kindergarten: If you’re pointing a finger, three are pointing back at you.) Then there are those who misquote the Bible, that old Adam and Eve versus Adam and Steve defense. Neither of these arguments is worth debating; these are arguments that can’t be won. What can be won, I believe, is the right for all of us to have a legal contract, which protects the emotional commitment between two people — of whatever gender.
Throughout this legal ordeal, I’ve discovered just how many implicit rights marriage provides, rights that have tentacles that reach into every important aspect of daily life. Many of these revolve around community property, access to family courts, taxes, Social Security and survivors’ benefits. Some of these can be addressed through paperwork — wills and legal documents — but many, such as tax and benefit rulings, are just flat out unavailable to gay and lesbian couples. Unfortunately, the point at which many of us butt up against these discriminations corresponds to a moment of tragedy.
After the death of Diane Whipple in a dog attack earlier this year, San Franciscans watched sympathetically as Whipple’s partner, Sharon Smith, attempted to sue for wrongful death on behalf of her partner. After Smith discovered she lacked the basic legal rights to file this claim, public opinion shored up to support her. A judge eventually granted her the legal right to proceed with her suit, holding that it would be unconstitutional to limit this right to married couples while at the same time denying homosexuals the opportunity to marry.
Soon after this tragic event, Assemblywoman Carole Migden authored and pushed through AB-25, one of the most comprehensive pieces of gay-rights legislation in the country. This new law enables registered domestic partners to sue for wrongful death, as in Smith’s situation, in addition to extending domestic partners other rights afforded to married couples, including the ability to: use sick leave to care for an ill partner; administer a partner’s estate; use a statutory will; adopt a partner’s child using the step-parent adoption process; make medical decisions in the hospital or act as a conservator; and continue health benefits for surviving partners of government employees and retirees.
A handful of other rights are included in AB-25, legislation that quietly went into effect on Jan. 1. Yet, according to legal experts, there are still nearly 1,700 — yes 1,700 — state and federal protections that blanket the lives of married heterosexuals that those of us on the other side of the fence can’t — and shouldn’t — count on. Partners of 9-11 victims have been shown their precarious legal standing as they’ve watched the distribution of disaster funds. Though the Red Cross offered relief to domestic partners left behind, federal programs were less forthcoming. Locally, Marin County resident Keith Bradkowski, a flight attendant for American Airlines, discovered the survivor’s benefit check sent by his partner’s employer went to his partner’s parents — from whom he was estranged.
A straight couple I know who have been living together well over 10 years have made the decision not to marry until their queer friends are allowed to do so as well. Although I’m terrifically moved by their support, I’m not advocating a nationwide nuptial boycott — though it would certainly raise public awareness of the issue. I’m just too selfish: I love a good wedding. But this wedding season, while raising your glass and wishing well to others, take a moment. Remember, there are those of us out here who’d like, if not to march down an aisle, to reap the gifts this legal union provides. And I’m not talking about toasters and china.
© 2002, Louise Rafkin
Rafkin edited “Different Daughters: A Book by Mothers of Lesbians”
and “Different Mothers: Sons and Daughters of Lesbians Talk about their Lives”
This article was originally published in the San Francisco Chronicle, January 20, 2002. Reprinted with permission.