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Same-Sex Couples: Marriage, Families, and Children
An Analysis of Proposition 22 — The “Knight” Initiative
by Michael S. Wald
© December 1999, Michael S. Wald


Table of Contents
Summary of the Report
Introduction
The Legal Significance of the Initiative
A Framework for Analysis
Who Can Marry?
Why Does the State Provide for and Regulate Marriage?
The Legal Consequences of Marriage
    A. Regulations That Recognize Emotional Attachments and Needs
    B. Regulations to Encourage and Reflect Economic Sharing
    C. Regulations with Respect to Parenting
Same-Sex Couple Marriages and Family Policy
    A. Promoting and Strengthening the Establishment of Units
    Committed to Long-Term Mutual Support
          Number of Same-Sex Couples
          Commitment and Stability
                Research on Relationships of Same-Sex Couples
                Research on Stability
    B. Parenting
    C. Would Recognizing Same-Sex Marriages Undermine
    Marriage in General or Have Other Societal Costs?
          Marriage and Procreation
          Social Stability
          Other Claims
    D. Is Cohabitation an Adequate Alternative?
Recognizing Out-of-State Marriages
    A. Long-Term Residents of Other States
          Upsetting Valid Expectations
          Deterring Travel
          Creating Legal Uncertainty and Litigation
    B. Californians Moving and Returning
Domestic Partnership
Conclusion
Appendix A: Benefits and Obligations Connected with Marriage
    Laws Furthering Emotional Bonds
    Laws Furthering Child-Rearing
    Laws Furthering Economic Sharing
Appendix B: The Author
Endnotes

Summary of the Report

In March 2000, California voters will vote on Proposition 22, a ballot initiative sponsored by State Senator Pete Knight. This Initiative would add the following provision to the California Family Code: “Only a marriage between a man and a woman shall be valid or recognized.”

Under current state law, only a man and a woman can marry in California. Thus, voters do not need to vote for the Initiative to keep this definition of marriage.

The stated goal of the Initiative’s proponents is to prevent California from recognizing marriages of same-sex couples entered into in other states. At present, no other state authorizes such marriages. However, if another state were to authorize such marriages and a same-sex couple who marry in that state later move to California, officials here would have to decide whether to consider this couple married for purposes of California law. Since 1872, California has followed a policy of recognizing all marriages, wherever contracted, even if the couple could not marry in California. The Knight Initiative seeks to alter this policy with respect to marriages of same-sex couples.

Although the Initiative will not affect who may marry in California, its proponents assert that recognizing any marriages of same-sex couples would alter the meaning of marriage and the functions it serves in society. In fact, much of the current debate treats the vote on the Initiative as a referendum on same-sex couple marriage itself.

This report examines the considerations that voters might take into account in deciding whether same-sex couples’ marriages, validly entered into in other states, should or should not be recognized in California. It analyzes the claims of both proponents and opponents of the Knight Initiative regarding the likely consequences that passage of the Initiative would have on children and families in California, as well as on those who may move here. The report examines these questions within the context of California’s laws and their underlying policies regarding marriage, a perspective often absent in the current debate.

Since the debate often focuses on the desirability of same-sex couple marriage itself, the report also analyzes the likely effects of a general policy of allowing these unions.

There are now at least 400,000 same-sex couples living together in California. In fact, the percentage of gay men and lesbians living with partners is the same as the percentage of heterosexual adults living with partners, approximately 60 percent. Many of these families have children. Their relationships are now recognized in California state law, which provides for a domestic partner registry with public benefits to the same-sex domestic partners of state employees, in the ordinances and policies of many California cities and counties, and in the benefit policies of many private businesses.

Passage of the Initiative could have a number of negative effects on these families. In states that have adopted statutes similar to the one proposed in the Initiative, lawsuits have been brought challenging local or state ordinances that provide any recognition or benefits to same-sex domestic partners, such as California’s recently enacted domestic partners legislation. These lawsuits claim passage of these statutes constitute a legislative rejection of any same-sex relationships. Passage of the Initiative also may create a sense of stigma that will harm the adults and children in these families.

Same-sex couples moving here would face additional problems. A great deal turns on whether one is married. [See Example of Rights and Obligations below.] Marriage confers unique legal rights and obligations that can significantly enhance the lives of married couples and their children. These rights and obligations enable married couples to organize their lives in ways that maximize their joint well-being, assuring them some degree of economic protection if things go badly. At the same time, these rules require that each spouse fulfill the moral obligations that arise from long-term relationships. And these laws encourage childrearing in two-parent units, with each parent having a legal relationship to the child and to each other.

California marriage law reflects the judgment that society as a whole, as well as the individuals themselves, benefit when people commit to sharing their lives through marriage. At the same time, California law views marriage as a personal choice, belonging to the couple. Therefore, the opportunity to marry is available to virtually all opposite-sex couples, even though many of the marriages will not achieve the goals the state hopes for. Because the opportunity to publicly and legally commit to share one’s life with another person is one of the most central aspects of human experience for many people, marriage has been declared to be a fundamental civil right under the federal and state constitutions.

Although California family law seeks to support and encourage couples to marry, proponents of the Initiative claim that recognition of marriages by same-sex couples would be harmful. They make a number of arguments to support this view.

Some of the Initiative’s proponents start from the premise that homosexuality is morally wrong. They take it for granted that it is bad policy to recognize a right of gay and lesbian couples to marry. However, California family policy has rejected this view of homosexuality. Although current law does not authorize same-sex couple marriages, the state legislature has recognized same-sex domestic partnerships and the courts have provided various rights to same-sex couples.

The Initiative’s proponents often raise two other value arguments, generally associated with the teachings of some religions. One claim is that same-sex couple marriage is inconsistent with the nature of marriage itself because the only legitimate purpose of marriage is to channel procreation into stable units; since same-sex couples cannot procreate, they should not be able to marry. A second claim is that sexual intercourse itself is morally acceptable only for the purpose of procreation and consequently marriage should be limited to those who engage in morally acceptable sexual relations.

However, as is the case with divorce, California civil law reflects values that differ from those of some religions. It is not California policy to link marriage and procreation. Many of the couples who marry each year do not intend to have children, either because they are unable to do so or because they prefer to remain childless. In addition, it is both California policy and a constitutional right that couples may engage in sexual relations where procreation is not the objective. California law also permits individuals, regardless of sexual orientation or marital status, to have a child through artificial insemination.

Opponents of recognition also make several empirical claims. They contend that same-sex couple marriages would be so dissimilar to opposite-sex couple marriages, in terms of the nature of the relations between the partners, and the stability of the relationships, that it does not make sense to apply standard family policy to these couples.

There is now a large body of research that has looked at the relationships of same-sex couples. Contrary to claims of the Initiative’s proponents, and perhaps to public perception, the studies show that large numbers of lesbians and gay men live with long-term partners and their relationships function in ways that are similar to those of opposite-sex couples. Same-sex couples have the same mix of reasons for wanting to marry as opposite-sex couples. They nurture one another in sickness and health, often providing critical support in periods of major illness, benefiting not just the individuals involved but society as a whole. Moreover, recognition of these relationships should contribute to their stability. The partners will be more likely to receive the type of social support that is now given by parents, grandparents, friends, and neighbors to married couples.

Some opponents of same-sex couple marriage contend that it is harmful for children to be raised by gay or lesbian parents. Again, there is a large body of research available to assess this claim. The American Psychological Association concluded in 1995 that “(n)ot a single study has found children of gay and lesbian parents to be disadvantaged in any significant respect relative to the children of heterosexual parents. Indeed, the evidence suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children’s psychological growth.”

The vast majority of children in all the studies functioned well intellectually and did not engage in self-destructive behaviors or in behavior harmful to the community. The studies also found that in terms of peer relations, relations with parents, self-esteem, leadership ability, self-reliance, interpersonal flexibility, and self-confidence, as well as in general emotional well-being, the children living with gay parents did not look different from their counterparts with heterosexual parents. In the one study that followed children raised from birth into adulthood by a gay parent(s), the young adults did not differ from the young adults raised in heterosexual families with respect to employment, ability to find and relate to partners, or in their general sense of well-being.

In fact, recognition of a right of all same-sex couples to marry would be very beneficial to the thousands of children who are currently living with parents in a same-sex partnership. Enabling their parents to marry would protect the children’s economic interests by insuring their access to the resources of both adults. It would help guarantee stability of caretaking if something should happen to their biological parent; under current law the partner who is not the child’s biological mother may have no right to custody in such a situation. Children living with same-sex parents also would benefit by seeing that the community views their family as more “normal.” Their parents’ well-being will be improved, which will contribute to their capacity for child-rearing. By not allowing their parents to marry, or by undoing existing marriages, the children living with same-sex partners are made to suffer. Moreover, gay and lesbian youth will benefit because they will be able to look forward to the opportunity to marry.

Opponents of recognizing same-sex couple marriage also contend that recognizing such marriages would pose a great threat to marriage as an institution, and even to the fabric of society itself. It is claimed that centuries of tradition limiting marriage to male/female couples reflects the wisdom that this form of marriage is a critical aspect of social organization.

Since same-sex couples have not been able to marry, there is no evidence that allows direct evaluation of this claim. Proponents of these views are not precise about the harms they foresee or the evidence supporting their theories. Yet, similar predictions of disastrous consequences have been made in the past whenever changes to the rules regulating the structure of marriage, or who could marry, were being contemplated. The exact same claims were made by opponents of allowing interracial marriages, which were banned in California until 1948, and by opponents of laws that sought to make women equal partners in marriage. Such predictions regularly have turned out to be wrong.

The experience and judgment of other countries is also relevant. In recent years Denmark, Holland, Iceland, Norway, and Sweden have given formal status to same-sex couple unions. They recently have been joined by France. Australia, Canada, Israel, Namibia, and South Africa also recognize such unions for a variety of purposes. While these laws have been in effect for only relatively short periods, there is no evidence of social problems as a result of these policies.

One other common assertion is that recognition of same-sex couple marriages will force the state to recognize polygamous or incestuous marriages. From both a legal and a policy perspective this claim is baseless. It will be clear to legislators and judges that same-sex couples are fundamentally unlike polygamous units and sexual unions of a parent and child. Rules limiting people to one spouse reflect the concern that a person married to several people will not be able to adequately assume the economic obligations of marriage or divorce, as well as that the intimacy and emotional growth that are important elements of marriage are unlikely to develop where a person has multiple spouses. Allowing marriages between parents and children would entail numerous potential harms to the children and families. Again, the same argument was made against allowing interracial marriages. These claims seem more designed to play on fear than to promote reasoned discussion.

Finally, proponents of the Knight Initiative assert that there is a “difference between respecting a person’s right to same-sex relationships and endorsing same-sex marriages.” This argument is not accurate. First, recognizing a marriage entered into in another state for legal purposes is not the same as endorsing that marriage. Even if the Initiative fails, it can hardly be claimed that California has endorsed same-sex couple marriage, since California law still will define marriage as being between a man and a woman.

Moreover, passage of the Initiative would not be consistent with respecting a person’s right to same-sex relationships. It would result in undoing the legal status of a married same-sex couple who move to California. They would become “cohabitors,” not a married couple. Besides the stigma of this action, it would mean that they would need to draft contracts to deal with significant parts of their relationship. Contracting is not an adequate substitute for marriage law. It is costly, financially and emotionally, and enforcing contracts requires long court procedures, the outcome of which may be uncertain. In addition, there are significant rights and obligations associated with marriage that cannot be obtained or altered by contract.

In sum, the evidence seems clearly to indicate that it would be beneficial to children and families if same-sex couples were able to marry in California. But voters need not reach this conclusion in order to decide to vote against the Knight Initiative, since the issue before the electorate is not whether to permit same-sex couples to marry in California. The only question is whether California should adopt, even before any other state has authorized marriage by same-sex couples, a policy that such marriages will not be recognized in California.

Not recognizing such marriages would be harmful to both the adults and children in these families. A legal and emotional status that they had established will be taken from them. They would lose the many rights and obligations that are attached to marriage. It would create great uncertainty for both the couple and those who deal with them regarding their legal status. The legal relationship between the non-biological parent and any children could be altered; older children will have to cope with the stigma of seeing their parents’ marriage rejected by the state.

While the harm to these couples and their children is clear, the claims of the Knight Initiative’s proponents that society would suffer by recognition of these marriages are not supported by the facts. There is no reason to believe that same-sex marriages will function any differently from opposite-sex marriages in terms of commitment, stability, and parenting or that the recognition of these marriages will have negative effects on society in general. Contrary to the claims of the Initiative’s proponents, not recognizing these marriages would undermine California policy towards marriage and children. The state has a special interest in supporting the commitments of those who have married.

The Knight Initiative raises issues of deep emotional significance. Marriage has great symbolic as well as practical meaning. We all have a vision of what marriage means. Legal rights and obligations are only a small part of that under-standing. In the coming years, Californians undoubtedly will be asked to consider how to recognize and protect the relationships of the hundreds of thousands of gay and lesbian couples, and their children, living in our communities. Much public discussion will be needed. The Initiative is the wrong way to begin this process.

Example of Rights and Obligations

The following example illustrates some of the rights and obligations a same-sex married couple moving here from another state would lose if the Initiative passes. Same-sex couples living in California already lack these rights and obligations because they cannot marry.

Suppose a married female couple with a child born to one of the partners moves to California. In their previous state, one of the spouses had worked to put the other spouse through medical school. She had given up her job so that her spouse could take a medical residency in California. Suppose further that shortly after arriving here, the doctor spouse, who was the child’s biological mother, is killed by a drunk driver.

If their marriage is not recognized by California courts and officials, the surviving spouse could not sue the driver for damages; if the couple had not written a will, the surviving spouse would not inherit anything, regardless of the deceased spouse’s intentions; if the deceased spouse had been in a coma for a period of time following the accident, the other spouse would have had no say over the medical care her spouse received, and no obligation to pay the doctor bills. Moreover, failure to recognize the marriage might mean that the surviving partner would have no automatic legal right to custody of the child because she is not the child’s biological parent. She might lose this right even if both marital partners were recognized as the child’s legal parents in their previous state.


Introduction

In March 2000, California voters will vote on a ballot initiative, Proposition 22, sponsored by State Senator Pete Knight.[1] The Initiative proposes that the following provision be added to the California Family Code: “Only a marriage between a man and a woman shall be valid or recognized.”

Under current state law, only a man and a woman can marry in California.[2] Thus, passage of the Initiative would not have any effect on who can marry in California.

The major potential impact of the Initiative would be on marriages properly entered into in other states. At present, no other state authorizes marriages by same-sex couples. However, if another state were to authorize such marriages and a same-sex couple marries in that state and later moves to California, officials here will have to decide whether to consider the couple married for purposes of California law. Current California law provides that, “[a] marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.”[3] The Knight Initiative seeks to alter this policy with respect to marriages of same-sex couples.

This report examines the policy considerations that voters might take into account in deciding whether same-sex couples’ marriages, validly entered into in other states, should or should not be recognized in California, if the couple moves to California. However, although the Initiative will not affect who may marry in California, much of the current debate treats it as a referendum on same-sex couple marriage itself. Therefore, this report also examines the arguments for and against allowing same-sex couples to marry.

The report looks at the issue of same-sex couple marriage within the context of California’s laws and their underlying policies regarding marriage. This is a perspective often lacking in the current debate. The goal of the report is to provide information about the likely consequences that passage of the Initiative would have on children and families in California. There are now at least 400,000 same-sex couples living in California.[4] Many of these families have children. What would passage of the Initiative mean for them?

While people generally think of marriage primarily as a personal commitment and choice, it is also a legal status, carrying with it a number of rights and obligations. Not being able to marry has real consequences for both the adults and children in these families. This report describes why the state provides special legal recognition to couples who wish to marry and live together in a shared emotional, economic, and sexual union. It then examines the ways that society’s interests might be furthered or derogated by allowing same-sex couples to marry.

It is recognized that many people, both for and against the Knight Initiative, have strongly held views. Many proponents of the Initiative, including religious leaders,[5] start with the premise that homosexuality is morally wrong. They take it for granted that it is bad policy for the state to recognize a right of gay men and lesbians to marry. Other people believe that the only moral basis for any sexual relations is procreation within marriage and that since same-sex couples cannot have sexual relations leading to procreation they should not be allowed to marry.

Many opponents of the Initiative, including other religious leaders,[6] also focus on moral concerns. They question the fairness of excluding same-sex couples from marriage. They are concerned, as well, that passage of the Initiative will be harmful to gay and lesbian couples and their children.

Other people, whose views on the Initiative will not be based on their view of the morality of homosexuality, may still have questions about whether it makes sense to provide for marriage by same-sex couples. The authors of this report view homosexuality as one form of sexual identification and behavior, neither morally inferior or superior to any other form of identification or behavior. The analysis focuses on whether there are sound reasons, from the perspective of California law and policy with respect to marriage, to limit marriage to persons of the opposite sex.

The report begins by describing the legal significance of the Initiative and offers a framework for evaluating the issues raised by it. It then describes how the state currently regulates marriage and why. The next section reviews the legal privileges and obligations the state provides to married couples and examines the reasons why the law is structured this way. The analysis then turns to the question of how the societal interests in the institution of marriage would be affected if same-sex couples could marry. The research examining same-sex couples as parents and as partners is reviewed and the evidence supporting the claims of both proponents and opponents of the Initiative regarding the likely impacts of recognition of same-sex couple marriage on families, children, and the institution of marriage are analyzed. The next section looks at the issues specific to recognizing marriages entered into in other states. The final section examines whether current alternative ways of recognizing same-sex relationships, such as laws providing certain legal rights to same-sex domestic partners, adequately protect these couples and their children.


The Legal Significance of the Initiative

Unlike many California ballot propositions, the Knight Initiative is short, consisting of a one-sentence addition to the California Family Code. Since its passage would amend only a statute, not the California Constitution, the legislature could change either of the policies addressed by the Initiative, in the future.

In fact, the impact of the Initiative is not as simple as it may seem. As noted, under current California law only a man and a woman may get married in California. This will not change regardless of whether the Initiative passes or fails. Operationally, it is the words “or recognized” that are of significance. In essence, passage of the Initiative would mean that if a same-sex couple, legally married in another state, moves to California, their lawful marriage would not be recognized by California officials. They would not have any of the legal rights or duties prescribed by California marriage law.

The following example illustrates the potential impact of passage of the Initiative. Suppose a married female couple, who marry in another state if that becomes possible, moves to California with a child born to one of the partners through artificial insemination. Under the law of the state in which they married, both marital partners were recognized as the child’s legal parents. Before coming to California, one spouse had worked to put the other spouse through medical school. She had given up her job so that they could move to California where her spouse had a medical residency. Suppose further that six months after arriving here, the doctor spouse, who was the child’s biological mother, is killed by a drunk driver.

If their marriage is not recognized by California courts and officials, the surviving spouse could not sue the driver for damages; if the couple had not written a will, the surviving spouse would not inherit any of the deceased spouse’s property, regardless of the deceased spouse’s intentions; if the deceased spouse had been in a coma for a period of time following the accident, the other spouse would have had no say over the medical care her spouse received, and no obligation to pay the doctor bills. Failure to recognize the marriage might mean that the surviving partner would have no automatic legal right to custody of the child, because she is not the child’s biological parent. While she might ultimately be able to retain custody under various legal theories, it could require a court battle to achieve this goal.

Pursuant to California statute, which has been essentially unchanged since first codified in 1872,[7] California courts have always recognized marriages legally entered into in other states, even if the persons would be unable to marry in California.[8] For example, under California law people must be over 18 in order to marry.[9] It is California policy that persons younger than 18 are not competent to marry. Yet, if two 16-year-olds got married in Georgia, where 16-year-olds can marry, California would recognize that marriage when the couple moved here.[10]

Recognition is not just a matter of state policy. The U.S. Constitution provides that each state shall give “full faith and credit” to the public acts, records, and judicial proceedings of other states.[11] The Knight Initiative is an attempt to establish a basis for California courts to deny giving “full faith and credit” to some marriages validly entered into in other states. While there is some legal precedent indicating that a court in one state is not constitutionally required to give “full faith and credit” to another state’s act that is strongly against the public policy of the first state, the law in this area is not totally clear.[12] Thus, even if the Initiative passes it might not be enforced by California courts; if it is enforced, the refusal by a California court to recognize such marriages might be found to be unconstitutional by the federal courts.

Passage of the Initiative clearly would disadvantage same-sex married couples moving here from another state. More immediately, passage may have legal implications that would greatly affect same-sex couples currently living in California. In a number of states that have adopted statutes similar to the Initiative, groups opposed to any official recognition of same-sex couples have brought lawsuits challenging local or state ordinances providing any official recognition of, or benefits to, same-sex “domestic partners.”[13] These lawsuits assert that passage of these statutes constitutes a legislative decision that same-sex relationships may not be recognized by government in any way. Thus, for example, passage of the Initiative might lead to lawsuits challenging California’s recently enacted legislation making the same-sex domestic partners of state employees eligible for medical coverage as dependents of the employees. In addition, passage of the Initiative might be cited as a justification for allowing discrimination against gay men and lesbians in other areas, such as access to public accommodations or housing. It also may stigmatize these families, harming the adults and children.

Thus, passage of the Initiative may have far-reaching consequences for same-sex couples living in California, as well as for couples who may be able to marry in some other state and who wish to move to California. What interests of Californians might be served if the Initiative passes? How should the costs and benefits be balanced?

The next section provides a framework for assessing these questions.


A Framework for Analysis

While passage of the Knight Initiative would affect only marriages entered into in another state, proponents of the Initiative assert that recognizing any marriages of same-sex couples, regardless of where they were established, will alter the meaning of marriage and the functions it serves in society. It is not clear that recognizing the marriages of same-sex couples who move here would have the same effect as changing the law regarding who may marry in California. Nonetheless, this report begins by assessing what might be the general impacts of recognition of same-sex couple marriage on marriage and families in California.

From a family policy perspective, this involves examining the following questions:

a) What does it mean to be legally married? That is, what are the legal benefits and obligations that are affected by the fact that one is married, rather than single or living with another person in a “non-marital” relationship?
b) Why does the state regulate who can get married? That is, why does the state provide these benefits and obligations to some units and not to others?
c) How would same-sex couples who wish to marry fit within the purposes of marriage regulation?
d) What might be the benefits and costs of enabling same-sex couples to marry, for the adults in such relationships, for children living with them, and for other Californians?
California’s laws and social policies reflect the judgment that society as a whole, as well as the individuals themselves, benefit when people make a deep commitment to share their lives through marriage and, if they choose, to raise children together in marriage. Both proponents and opponents of the Knight Initiative believe that the state should support the institution of marriage. Thus, it must be asked why marriage should not be as inclusive as possible.

Moreover, marriage is recognized as one of the fundamental elements of individual liberty. The opportunity to publicly and legally commit to share one’s life with another person is for many people one of the most central aspects of human experience. In recognition of this, marriage has been declared to be a fundamental civil right, under the federal and state constitutions.[14] It is against this very strong interest of individuals that the state’s possible interests in limiting who can get married need to be assessed.

Proponents and opponents of the Knight Initiative offer a number of reasons why allowing or recognizing same-sex couple marriage would or would not advance the state’s general interest in marriage and family.[15]

The major contentions of proponents of the Initiative are that:

  1. The purpose of marriage is procreation; since same-sex couples cannot procreate they should not be able to marry.
  2. The only morally acceptable sexual relations are those where the purpose is procreation. Since sexual relations between same-sex partners cannot lead to procreation, such relations are immoral and should not be recognized as a basis for marriage.
  3. It is harmful to children, or less optimal for them, to be raised by same-sex parents.
  4. Homosexual individuals are not capable of the strong emotional feelings for another person necessary to make marriage work.
  5. Centuries of tradition limiting marriage to male/female couples is evidence that this type of marriage is a critical aspect of social organization. Allowing same-sex couples to marry will undermine the institution of marriage as a whole, since people will lose respect for it and for the law.
  6. Allowing same-sex couples to marry will force society to allow people who wish to enter polygamous or incestuous unions to marry.
The Initiative’s proponents assume that there is no difference between recognizing marriages entered into in other states and allowing such marriages to be granted within California. With respect to why California should change its policy of recognizing marriages validly entered into in another state, they assert that California should not let decisions by other states dictate our policy.

In response to these arguments, opponents of the Initiative assert that:

  1. The multiple functions of marriage are all met by same-sex couples. Lesbians and gay men share the same mix of reasons for wanting to marry as do heterosexual couples. Their desire to share economic and emotional integration, and to be able to raise children together, is not different from that of opposite-sex couples.
  2. Same-sex couples do have children. All of the evidence indicates that children raised by gay parents are as well-off as children raised by heterosexual parents. These children would benefit, in a variety of ways, if their parents could marry. Passage of the Initiative is likely to harm these children.
  3. Marriage serves many purposes for individuals and society, even if the couple does not choose to have children. That is why marriage is not restricted to people wishing to have children.
  4. Allowing gay men and lesbians to marry will strengthen, not weaken, the institution of marriage.
  5. Denying same-sex couples the opportunity to marry constitutes discriminatory treatment that stigmatizes the adults and their children, and deprives them of all the many advantages for which marriage is the gateway, thereby harming both the adults and children.
  6. Not recognizing marriages validly entered into in other states would be very harmful to these couples. They will be deprived of a status of great importance to the adults, their children, and their families. Their expectations regarding their rights and mutual obligations will be undone. Some couples may be deterred from moving to California, possibly forcing them to give up jobs or the opportunity to be near family.
In assessing these various claims, each voter first must assess the evidence provided by the proponents and opponents in support of their claims. For example, proponents and opponents disagree on whether recognizing same-sex marriage would strengthen or weaken the institution of marriage. Would it be harmful or beneficial to children? This report presents evidence relevant to assessing these claims. In reviewing this evidence, voters must decide how to weigh the information and which position to prefer when the evidence is unclear or incomplete.

In addition, voters must decide what constitutes a fair standard for distinguishing the treatment of same-sex and opposite-sex couples. Under California law virtually any couple over 18 years of age may marry, if they are of the opposite sex, even though many of the couples will not have children, or will not turn out to be good parents, and many of their marriages will end in divorce. Should the right of same-sex couples to marry be judged by a different standard?

Finally, voters should ask how clear or compelling are the justifications offered for treating same-sex couples differently from opposite-sex couples. Our society regards it as both morally and legally wrong to treat people unequally absent strong justification. Legally, the burden is on those who want to treat people unequally; the burden is especially high with respect to fundamental rights, like the right to marry.

The remainder of this report analyzes the Knight Initiative according to this framework.


Who Can Marry?

In deciding who should be entitled to marry or have their marriages recognized, it is useful to consider current law regulating who may marry. Under California law:

“Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.”[16]

“No particular form for the ceremony of marriage is required … but the parties shall declare, in the presence of the person solemnizing the marriage and necessary witnesses, that they take each other as husband or wife.”[17]

Thus, a man and a woman can legally marry if they receive a marriage license and go through a ceremony, presided over by a duly authorized official, at which each of them says that they take the other person to be their spouse. Nothing more is needed. The couple need not live together, sleep together, have children, or do anything jointly. Unless one of them takes an action to dissolve the marriage, or dies, they will remain husband and wife.

California law views marriage as a personal choice, belonging to the couple. The opportunity to marry is available to all people whom the state does not consider clearly unable to perform the functions that it is hoped that marriage will entail, even though it is recognized that many couples will not adequately perform these functions.

Thus, the only legal requirements for receiving a marriage license are that the applicants be a man and a woman, generally they must be over 18 years of age, they may not be closely related by blood, and they must not be already married.[18] The age restrictions are designed to limit marriage to persons capable of understanding the obligations that are incurred by marrying. Rules barring marriage between closely related individuals reflect a desire to prevent abuses of power within family relationships; there is also a concern, perhaps not valid, that such unions place any offspring of the couple at high risk for genetically related health problems. Rules limiting people to one spouse reflect the concern that a person married to several people will not be able to adequately assume the economic obligations of marriage (including those that arise in the case of divorce) and that the potential for developing the kinds of intimacy and emotional growth that are seen as important elements of marriage are unlikely to be achieved in situations where a person has more than one spouse.

Since the state places so few restrictions on who can marry, voters need to consider why same-sex couples are treated differently. To aid in assessing this restriction, the next section looks at why the state has an interest in marriage.


Why Does the State Provide For and Regulate Marriage?

“Marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime.” Elden v. Sheldon, California Supreme Court (1988).[19]

Although the state places very few restrictions on who can marry, marriage is more than just a personal act signifying a pledge of commitment between two individuals to live together in a shared life. It is a legally regulated institution that carries with it a number of legally prescribed benefits and obligations. The special legal status accorded marriage reflects the judgment that society as a whole has very strong interests in supporting the institution of marriage. At least four types of interests have been articulated by the legislature, courts, and by commentators who have written about marriage as a legal and social institution.[20]

First, marriage law is intended to encourage people to enter into long-term, stable units if they have children. Children need stable caretaking and generally benefit from having two adults available to care for them. Divorce law is designed to discourage the easy termination of these units.

Second, marriage law is designed to facilitate and support the decision of two people to commit to sharing their economic lives. Backing this commitment by law is desirable for society, as well as for the individuals. On one level this is related to the goal of facilitating child-rearing; two adults can often arrange their work lives in ways that maximize involvement in their children’s lives more easily than a single caregiver could.

But society and individuals reap benefits even when a married couple does not have children. Enabling people to make life decisions in concert with someone else greatly broadens the options of both of the partners; for example, marital partners may agree to support each other through school. With broader options, people can make greater contributions to the entire community, as well as enhance their own economic well-being. The contributions that marital partners, and often their extended family, make to each other also means that the state has to provide less economic support to individuals. This is especially true with respect to the care provided to a spouse who is seriously ill. Marriages provide a critical form of social insurance. For these reasons, marriage law provides economic protections and privileges to people who are married and protections for each of the partners in the case of divorce.

Third, through marriage people enhance their emotional well-being. The intimacy, love and commitment that hopefully takes place between married individuals is generally thought to be uniquely valuable to them.

Finally, it is believed that the institution of marriage plays a critical role in making an open, democratic society work. Both conservative and liberal commentators have pointed out the importance of this function. In marriage people learn to define themselves as caring rather than egoistic beings, as connected to, rather than alienated from, the concerns and well-being of others. As a result, they are more likely to give to society. As Bruce Hafen, President of Brigham Young University, has written:

“The commitments of close kinship and marriage represent the last modern vestiges of status as a source of duty. Much of what family members — especially marital partners — ‘owe’ one another cannot be enforced in a court of law; yet the sense of family duty has an uncanny power to produce obedience to the unenforceable. … A sense of voluntary duty is the lifeblood of a free society. … The family in a democratic society not only provides emotional companionship, but is also a principal source of moral and civic duty.”[21]

For all these reasons, our laws are based on the presumption that it is best to make marriage available to as many people as possible. In contrast, passage of the Knight Initiative would establish a policy of making marriage less inclusive.


The Legal Consequences of Marriage

While the state places few restrictions on who can marry, a great deal turns on whether one is married. Marriage confers unique legal rights and obligations that can significantly enhance the lives of married couples and their children.

There are three basic categories of legal regulation of marriages, each with rules designed to further one or more of the reasons the state has for supporting marriage: furthering the affective or emotional bonds associated with marriage; facilitating economic sharing; and supporting parents in the raising of children. In addition, there are a number of rules that regulate how outsiders, businesses and government, deal with the marital unit.

This section discusses some of the most important benefits and obligations that are tied to marriage. A more complete list can be found in Appendix A.


A. Regulations That Recognize Emotional Attachments and Needs

In marriage, more than in any other relationship except parenthood, individuals invest unselfishly in the well-being of another. Spouses make investments through physical labor, emotional support, or material contributions. While the material investments often receive the most legal attention, the emotional investments may be the most critical. It is not surprising, therefore, that marital rules are designed to reflect and facilitate the emotional commitments spouses make to each other.

Two types of laws are especially important. First, California law provides that if one spouse becomes incompetent to make decisions with respect to her or his medical care, the other spouse is given the power to make such decisions.[22] These laws are based on the assumption that each spouse is the most knowledgeable about the other’s wishes and needs and that their formal commitment to marriage has signaled their willingness and desire to have their spouse make medical decisions they cannot make for themselves. Unmarried individuals may give their partner some of these rights by signing a durable power of attorney. But not all unmarried couples know to do this. As a result, the person closest to a very ill individual may be excluded from participating in critical decisions.[23]

Second, under California law, individuals have a right to take family care and medical leave from work to care for their spouse and children.[24] Partners in a same-sex relationship do not have a right to such leave, which may make it impossible for them to provide care and result in the ill partner or child receiving less or poorer care.


B. Regulations to Encourage and Reflect Economic Sharing

While emotional commitment may be what people most hope for in a marriage, joint economic sharing and investment also are extremely beneficial to the partners and to society as a whole. There are a number of laws that encourage marital partners to act as a community in financial matters and that protect each of the partners if they make economic sacrifices for the benefit of the community. These rules have implications during the relationship, if the partners separate, or if a spouse dies.

To begin with, California is a community property state. This means that, unless spouses choose otherwise, all property acquired during the marriage, including pensions, is owned equally by both spouses.[25] This is true regardless of which partner “earns” the money; it is assumed that the earnings of each partner are made possible by the sharing of tasks within the marriage. In contrast, if couples are cohabiting, all property is separate property, unless the partners establish a different structure through contract. The partners in a marriage also have obligations of mutual support during the relationship, unlike cohabitors.[26]

The economic sharing is greatly facilitated by the fact that marital partners automatically qualify as dependents for purposes of medical and other forms of insurance. This is especially important for couples who decide to have one of the partners provide full-time care for children. It also allows each of the partners greater flexibility in finding jobs or making other career decisions. In addition, if one of the partners in a marriage is wrongfully injured and unable to continue to make economic contributions, the other partner is entitled to sue for damages to the partnership;[27] again this is not true for cohabitors. Thus, an individual who has given up a career to enhance the career of a same-sex partner or to promote the family’s well-being in other ways is left without redress if her or his partner is injured or killed.

The marital unit also assumes economic burdens, again reflecting the sharing principle. In a marriage, the community is responsible for the debts incurred by either partner; this is not true in cohabitation. In addition, the entire family income counts in establishing eligibility for means-tested government programs, such as student loans, MediCal, or In-Home Support for the Elderly.

While the legal treatment of spouses is often very important during the marriage, it is, perhaps ironically, often even more critical if the marriage ends in divorce or death. Upon death or dissolution, a number of laws are designed to automatically protect the economic interests of the surviving spouse or to provide support for a divorced spouse who has given up a career to raise children, has put a spouse through school, or otherwise has made economic sacrifices to advance her or his partner’s career.

With respect to death of a spouse, California law provides that the surviving spouse inherits the couple’s assets if the other spouse dies without a will, a common occurrence, and greatly restricts the ability of one spouse from totally disinheriting the other.[28] Cohabitors do not have these protections.

With respect to divorce, just the fact that married couples must get a divorce in order to end the relationship is important to the individuals in the marriage, as well as to the state, which seeks to promote stability. Both the rules and the process of divorce are intended to discourage couples from breaking up too easily and to protect the economically weaker spouse, if divorce occurs. If the spouses divorce, all of the community property is divided equally between them; this does not happen when cohabitors end a long-term relationship. Either spouse may also be awarded spousal support, based on need and other equitable considerations. Cohabitors are not entitled to support as a matter of law.

Taken together, the rules bearing on the economic relations of married couples offer significant advantages to those couples. It enables them to organize their lives in ways that maximize their joint well-being, assuring them of some degree of economic protection if things go badly. At the same time, these rules require that each spouse fulfill the moral obligations that arise from long-term relationships.


C. Regulations with Respect to Parenting

It is with respect to rights related to parenthood that the law provides the most important protections to both parents and children. California law tries to enhance the well-being of children by encouraging and facilitating, but not requiring, the rearing of children by two adults legally related to the child and each other. Even if the parents divorce, the law favors maintaining the child’s legal and physical relationship with both parents and both parents remain obligated to provide economic support to the child.

However, when children are being raised by a same-sex couple, the law makes it difficult for the partner who is not the biological parent of the child to establish a legal relationship with the child. To understand how this happens, it is necessary to review the common contexts in which same-sex partners rear children. The most common situation, at this time, is when one of the partners is the biological parent of a child born in the course of a prior heterosexual relationship (usually a prior marriage). In such situations, the new partner is the equivalent of a stepparent in a marital unit. The second situation is where same-sex partners are living together and decide that one of them will become the biological parent of a child through some form of donor insemination, and that, after the child’s birth, they will serve as co-parents. Married couples may also have children in this manner. Finally, as is the case with married couples, same-sex couples may seek to adopt a child to whom neither is biologically related.

It is with respect to adoption of children by stepparents, and to the rights of the non-gestational partner when a child is conceived through artificial insemination, that same-sex couples are treated very differently from married couples. For married couples, the legal rules greatly facilitate establishment of legal parenthood by the partner not biologically related to the child. In contrast, the non-biological partner in a same-sex couple faces formidable obstacles in establishing a legal parent-child relationship.

Thus, in marriages where one of the adults has custody of a child born in a prior relationship, California law and practice give the stepparent a virtually automatic right to adopt the child, provided the non-custodial biological parent is dead, has abandoned the child, or does not object to the adoption. The law presumes that the adoption is in the child’s interests. Paperwork and other legal requirements are minimal.[29] These rules are designed both to provide children with two legal parents whenever possible, and to enable the stepparent to establish a legal relationship with the child.

In contrast, the same-sex partner of a person who has a child from a previous relationship is not eligible for a stepparent adoption. Instead, the couple must try to get a court to grant what is commonly called a “second-parent adoption.”[30] This is a much more difficult process than a stepparent adoption. Usually, there is an extensive social work assessment of the “suitability” of the prospective adoption. The adoption process can be lengthy and costly, emotionally as well as financially. Moreover, in some counties the judges will not authorize such adoptions.

Same-sex couples face similar barriers if the couple wishes to have a child through donor insemination. In the case of married couples, a husband is automatically made the legal parent of a child born to his wife through artificial insemination, provided that he consents to the insemination and it is carried out under the supervision of a licensed physician.[31] If a lesbian couple decides to have a child by this means, the non-gestational partner is not automatically treated as the child’s second legal parent. To achieve that status, she must apply for a “second parent” adoption, with its attendant difficulties.

There are major adverse consequences for the child, and adults, if the non-biological partner cannot establish a legal relationship with the child. Without a legal relationship, the child is not entitled to support from the non-biological partner, nor to any inheritance if the person dies without a will, nor to numerous other economic protections. The non-biological partner has no opportunity to seek custody or visitation if the couple splits up, no right to consent to medical treatment of the child, and none of the various other legal rights of parenthood. The emotional quality of the relationship for both the child and the adults may be significantly altered.


Same-Sex Couples Marriages and Family Policy

Being able to marry can contribute significantly to the emotional and economic well-being of couples. Living with married parents provides a number of benefits and protections to children. Society benefits when people choose to marry. This section examines the claims of the Initiative’s proponents that recognizing marriages of same-sex couples would be harmful to society. It also looks at the ways legal recognition of these relations might further societal interests regarding marriage and families. Again, the discussion is in terms of the central goals of California’s policy supporting marriage: promoting the emotional and economic well-being of adults; enhancing the capacity of parents to promote the well-being of children; and promoting stable relationships.


A. Promoting and Strengthening the Establishment of Units Committed to Long-Term Mutual Support

The first issue is whether recognizing same-sex couple marriage would further or detract from the goal of promoting and strengthening the establishment of units committed to long-term mutual support. Proponents of the Initiative make two claims: first, that same-sex couples’ marriages would be so dissimilar to opposite-sex couples’ marriages, in terms of the nature of the relations between the partners, that it does not make sense to apply standard family policy to these couples; and second, that such marriages are likely to be highly unstable, thereby defeating the goal of advancing social stability. Are they right?

Only very recently could same-sex couples safely reveal their status publicly.[32] Studies conducted even twenty years ago probably would not capture important aspects of today’s families. The changes in societal attitudes have enabled researchers to conduct studies with larger and more representative samples than in the past. There is now a sufficient body of evidence to draw reasonable conclusions about family relations of same-sex couples.[33]

In assessing this information, it is necessary to ask by what standard should the evidence be judged. California law does not dictate what a marriage should look like. The nature of current marriages varies greatly. The law does not attempt to restrict marriage only to those couples who are not likely to divorce; divorce rates are very high. Should a different standard be applied when same-sex couples wish to marry?

Number of Same-Sex Couples

Unlike marriages, which require licenses, there is not an official recording system for cohabiting couples. The best available data are from the 1998 Current Population Reports (CPR), information gathered by U.S. Census Bureau annually from a representative sample of the population. The Census Bureau estimates that in 1998 there were approximately 1,674,000 same-sex partnerships in the United States; of these 1,674,000 couples, 865,000 were two-male couples and 809,000 were two-female relationships.[34] Two hundred forty-three thousand male couples (28 percent of the total) and 162,000 female couples (20 percent) lived in California, mostly in large urban areas. A large number of the same-sex couples are raising children. In the 1998 Census, 167,000 couples reported that they had children 15 or younger living with them (the Census Bureau does not ask about 16- and 17-year-olds).[35] No California figures are available.

Census estimates indicate that there were approximately 4,236,000 non-married opposite-sex couples living together in the United States in 1998 and 54,317,000 married couples.[36] Thus, self-reported same-sex couples constituted about 3 percent of all couples living together — married or cohabiting — in the United States. Assuming that approximately 3 percent of the adult population is exclusively gay in identity, a figure specified in the best national study on sexual behavior,[37] then the percentage of adult gay men and lesbians living with partners is the same as the percentage of heterosexual adults living with partners, approximately 60 percent.[38]


Commitment and Stability

Despite the fact that a large number of gay men and lesbian women live with partners, often with children, opponents of permitting same-sex marriage assert that gay men and lesbians are uninterested in making the types of commitments entailed in marriage and that, if same-sex couples are allowed to marry, those who choose to do so will have a high break-up rate. Of course, advocates of this view cannot present data that directly addresses these claims, since same-sex couples have not been allowed to marry; those who argue for equal treatment face the same problem in proving what such marriages would be like.

The best evidence available to assess these issues comes from the studies of same-sex partnerships, even though the couples who would choose to marry are only a subset of these partnerships. The findings of these studies do not support the argument that marriages of same-sex couples would differ from opposite-sex marriages in ways relevant to public policy. It seems clear that large numbers of lesbians and gay men live with long-term partners, that a great many of these relationships endure, and that, with regard to mutual care and support, the relationships function similarly to those of opposite-sex couples. Moreover, legal recognition of these relationships should contribute to their stability. The partners will be more likely to receive the type of social support that is given by parents, grandparents, friends, and neighbors to married couples. Each partner’s sense of self and the relationship may be altered in positive ways. And marriage will make break-up of the relationship more difficult by requiring a legal divorce, and legal rules, such as support obligations upon divorce, that reflect the nature of the commitment between the partners.

Research on Relationships of Same-Sex Couples.[39] Surveys of the gay community find that the great majority of respondents would like to have a life partner and be able to marry. Moreover, among those who identify themselves as living with partners, the vast majority (close to 90 percent) of the respondents in all surveys, both men and women, indicate that they have made a long-term commitment to the relationship. Many of these couples view themselves as “married.” Between 30 percent and 50 percent (more among women) indicate that they have gone through commitment ceremonies, sometimes presided over by religious officials, or have exchanged rings. Many couples have registered as domestic partners, where that option was available, and are viewed by family and friends as married. In all of the surveys, a significant portion of the respondents indicated that they had been in the relationship for more than ten years (although the respondents may not have been representative of the entire population of same-sex couples).

These survey responses are supported by the research studies that have assessed the nature and quality of same-sex relationships through self-reports of partners in these relationships. Most of these studies include heterosexual couples for comparison.[40] Due to the relatively small number of subjects in these studies, and the possibilities of sample bias, we cannot generalize the findings from these studies to the entire population of same-sex couples. Again, however, the study findings support the conclusion that the great majority of same-sex couples share the kind of intimacy and economic sharing that marriage law seeks to encourage. All of the studies found that the same-sex couples resembled the heterosexual cohabiting couples in the studies in this regard.

Same-sex partnerships often vary in some ways from opposite-sex partnerships. This would be expected. All research on families reports great variation in the structure and functioning of marriages, with respect to gender roles, childrearing practices, and even with respect to sexual relations. These differences often are related to a family’s socioeconomic situation, race, ethnicity, religion; cultural norms shape behavior.[41] The nature of marriage relationships also has changed significantly over time, so there are generational differences in the ways men and women relate to each other and in the structure of their marriages. Moreover, men and woman often view marriage differently, so it would be natural that a marriage consisting of two men or two women may differ in various ways from a marriage of a man and woman.[42] But with regard to caring and supporting each other, the central concerns of marriage law, it seems clear that same-sex couples function similarly to opposite-sex couples.

Research on Stability. No studies have followed a randomly selected group of same-sex couples over a period of time in order to assess stability of the relationships. Several studies do provide relevant information, although they rely on non-random samples. The largest study, conducted in the late 1970s by two sociologists at the University of Washington, included 3500 same-sex couples, 3500 married couples and 650 heterosexual cohabiting couples.[43] Most of the cohabiting couples, both same-sex and opposite-sex, had been living together less than four years. The average length of the marriages, in contrast, was nearly ten years.

The researchers did two sets of interviews, 18 months apart. At the follow-up, 78 percent of the lesbian couples, 84 percent of the gay male couples, and 83 percent of the opposite-sex couples were still together; 93 percent of the married couples were still together. The higher percentage for married couples is not surprising; they had chosen to marry, they likely were receiving the social and economic supports designed to encourage stability in marriage, and they already had been married for a lengthy period (most divorces occur early in marriage). In another more recent longitudinal study,[44] with a smaller sample (66 male and 51 female same-sex couples) but with a five-year follow-up period, 86 percent of the male couples and 84 percent of the female couples remained together over the five-year period.

These findings, along with the information from the magazine surveys, are especially illuminating in light of the fact that our society has not, until now, made the possibility of marriage and family an option that gay men and lesbians could see as part of their future. The message to these individuals was that marital-type commitments were not expected, nor recognized or protected. Yet, despite the barriers and the stresses created by legal and cultural norms, it is clear that large numbers of gay men and lesbian women have entered into stable, long-term partnerships.

Some opponents of same-sex couple marriage have argued that, at least with respect to gay men, homosexuality is incompatible with commitment and, therefore, with marriage. To support their argument, they point to evidence from surveys indicating that gay men are less likely than heterosexual men to state that sexual fidelity is an important element of a relationship and that the relationships of gay male partners are less likely to be monogamous than those of cohabiting heterosexuals.[45]

But these findings do not support the conclusion that male couples should be precluded from marrying. First, while sexual fidelity may be an important contributor to marital stability, its impact depends upon the weight the partners give to it. In the studies of male couples, the respondents report very high levels of caring and commitment, even in those relationships which were not totally monogamous. This love and support often included caring for a partner with AIDS or other severe illnesses. Moreover, if marriage were an option, those couples who choose to marry may well place more emphasis on sexual fidelity. Moreover, the fact that they are married likely will influence their behavior. Scholars who study sexual behavior emphasize the critical role that culture plays in shaping individual sexual behavior. As the authors of the most comprehensive and respected study of sexual practices in the United States recently wrote:

“(S)ociocultural processes play a fundamental role in determining what [people] perceive to be ‘sexual’ and how [people] construct and interpret [their] sexual fantasies and thoughts. Thus, although biological factors may indeed affect sexual behavior, they play at most a small role in determining what those specific behaviors will be. … (T)hrough a process of acculturation lasting from birth to death, individuals acquire patterns of sexual conduct that are appropriate to their culture (including those patterns that are thought to deviate from the norms of their culture).”[46]
These researchers conclude that people generally adapt their sexual behavior to conform to cultural norms. Our society has outlawed homosexual sexual activity. Under these circumstances, it is not surprising that behavioral patterns of gay men differed somewhat from heterosexual men. But, if marriage were an option, there is likely to be a convergence of the norms of heterosexual and homosexual relationships, with respect to dating, sexual relations, and marriage, from the time of adolescence onward. It is a testament to the powerful influence of general culture that these norms already overlap to such a substantial degree.


B. Parenting

Perhaps the area of greatest concern to those who do not view homosexuality as morally wrong but who are skeptical of same-sex marriage centers around issues related to children: Isn’t it harmful to children, they ask, to be raised by a homosexual parent or by a same-sex couple?

Unquestionably, how the next generation will be raised should be a central concern of the state. But in the debates regarding recognition of same-sex couple marriage, the discussion about children’s well-being does not focus on the right issues. Opponents of recognizing such marriages argue that it is better for children to be raised by two opposite-sex married parents, claiming that children need parents of both sexes as role models.

As we discuss below, the evidence does not support these claims. Even more importantly, from a policy perspective, the issue is not whether one form of family is better, however that term might be defined, for children than another. The hundreds of thousands of children who are currently living with parents in a same-sex partnership, or who are living with a single gay mother or father who may later find a partner, will continue living with their parent(s) regardless of whether the state allows their parents to marry. Nobody is suggesting that they should be taken from their parent(s) and placed elsewhere; such a policy would not only be undesirable and contrary to existing California law, it would be unconstitutional.[47]

For these children the only issues are whether their parents will be married or cohabiting and whether it will be easier or harder for the partner who is not the biological parent to adopt the child. As previously discussed, these children clearly would benefit if their parents were able to marry and if they could be adopted by the non-biological parent. This would maximize the stability of the parent-child relationship and better protect the children’s economic interests. The children would be able to see their family as more normal. Their parents’ well-being will be improved, which will contribute to their capacity for child-rearing. By not allowing their parents to marry, or by undoing existing marriages, the children are made to suffer.

Perhaps those opposing marriage believe that if the state allows same-sex couples to marry, more such couples will have children, who will be living in a family that is less “desirable” than a heterosexual, married family. Again, as will be discussed, the evidence does not support the claim that children raised by same-sex parents exhibit more developmental problems than those raised in heterosexual families. But even if there were some differences favoring those reared in heterosexual households, does this mean that it is better for children not to be born at all than to be born to parents of the same sex? Or that society would be better off if these children were not born? Such a position would be totally contrary to California family law policy.

It has never been California policy that only those families that will provide children the most “optimal” home should have children. There would be no support for such a policy, for many good reasons. California policy is based on the judgment that it is best to try to help all parents raise their children successfully, not to limit who may have children or to penalize children because they were born to the “wrong” parents by making things more difficult for their parents.

The undesirability of such a policy is made even more compelling by the fact that the evidence shows that children raised by gay male and lesbian parents develop just as well as children raised by heterosexual couples. Over the past twenty years, there have been a number of studies of children being raised by lesbian or gay male parents.[48] These studies have looked at many aspects of the children’s development. From a policy perspective, the most important considerations are whether the children living with gay parent(s) were more likely than children in heterosexual homes to have problems in school; to have serious emotional problems; to engage in harmful behaviors, such as drug use, early pregnancy, delinquency; to run away from home; or to have problems finding employment or adjusting to adulthood. These are the aspects of child development that are of major concern to society, both for the children’s sake and for the community’s own sake. It is in these situations that the state often gets involved in overseeing the quality of parenting.

These studies also looked at a number of other aspects of the children’s development; did they have adequate self-esteem, how were their peer relations, how did they get along with their parents, were they “happy?” Researchers also have focused on the gender identification and sexual orientation of children in these families, since this is an issue of theoretical interest to specialists in child development and because one of the concerns of people opposed to gay parenthood is that the children will become homosexual.

The number of children in these studies is small and the samples non-random. But the findings are all consistent. Upon reviewing these studies, the American Psychological Association, in 1995, concluded that the research indicates that children raised by gay parent(s) are not “disadvantaged in any significant respect relative to the children of heterosexual parents.”[49] Most significantly, for purposes of family policy, none of the studies support the claims that children raised by gay male or lesbian parents will have serious emotional, intellectual, or social development problems because of their parent’s sexual orientation. In the one study that followed children raised from birth into adulthood by a gay parent(s), the young adults did not differ from the young adults raised in heterosexual families, with respect to employment, ability to find and relate to partners, or in their general sense of well-being.[50] The vast majority of children in all the studies functioned well intellectually, did not engage in self-destructive behaviors or in behavior harmful to the community. In these regards, as well as in general well-being, they did not look different from their counterparts with heterosexual parents.

The studies also find that children raised by gay male and lesbian parents get along as well with their parents and peers as children raised in heterosexual families. The research finds no differences between these groups of children in self-esteem or in characteristics such as leadership ability, self-reliance, interpersonal flexibility, and self-confidence. In a few studies, the children in same-sex households even seemed to have higher levels of well-being in some respects than the comparison group of children from heterosexual families.

All this is not to say that being raised by a gay parent or parents is not different, or without difficulties, for a child in some respects. The children were aware that homosexuality is stigmatized by many people. Many of the adolescents in the studies report being embarrassed to tell their friends about their parents’ sexual orientation or living arrangement and children reported being teased about this.[51] For some of the children who were living with a gay parent following their parents’ divorce coping with the custodial parent’s new sexual identity added to the difficulties most children experience from divorce itself. These children’s lives were not problem-free, but despite these special problems, the children’s mental health did not differ from that of other children. In essence, these children had learned to deal with the fact that society considered their family different, just as children living in other minority families, for example religious minorities or interracial families, learn to cope with community stigma based on their family’s difference.[52]

Some commentators have argued that one reason for discouraging gays and lesbians from becoming parents is that their children may be more likely to engage in homosexual behavior.[53] Again, the relevance of this to the issues posed by the Initiative is not clear. Denying people the right to marry does not mean they will not have children. The desire for children is very strong.

It is clear, of course, that some children raised by both heterosexual and homosexual parents establish homosexual relationships and identities. The most comprehensive national study of sexual behavior found that approximately 8 percent of people report that they have had a homosexual relationship or encounter at some point in their life and that approximately 2.8 percent of adult men and 1.4 percent of adult women self-identify as exclusively homosexual.[54]

There is some indication, in several studies, that the children living with gay parents were more likely to have a same-sex sexual encounter or relationship during their adolescence than were children from heterosexual families.[55] Because the samples in these studies were so small and the great majority of the children in both settings reported only heterosexual relationships, the differences in the percentages reporting same-sex relationships were not statistically significant. However, it would not be surprising if family composition influenced sexual behavior. Both the presence of a parental role model, and the fact that the children living with a gay parent would generally assume that homosexual behavior is not bad, should make these children more open to considering a same-sex relationship.

However, regardless of whether or not children raised by gay parents are more likely to explore homosexual relations or self-identify as gay in adulthood, recognizing the validity of same-sex couples’ marriages should increase the well-being of those children who recognize their sexual identity as being homosexual during their early teens or even earlier. The great majority of these children will be living in an opposite-sex household. Many heterosexual parents reject their gay children, which can lead to severe mental health problems for the children, including attempted or actual suicide. Perhaps if society accepts the human dignity of gay men and lesbians through recognition of the validity and importance of their unions, fewer heterosexual parents will reject their gay children. Gay and lesbian youth also will benefit because they will be able to look forward to the opportunity of marriage.

In sum, the evidence all supports the conclusion that in their capacity as parents, just as in their capacity as committed partners, gay and lesbian couples function similarly to heterosexual couples. They are highly committed parents, who, in the case of children conceived by artificial insemination, or who were adopted, went to great lengths to have the child. These children all are wanted. It is not surprising that they are developing normally. And these children’s well-being would be better protected if both adults were able to be their legal parents.


C. Would Recognizing Same-Sex Marriages Undermine Marriage in General or Have Other Societal Costs?

One of the major contentions of supporters of the Knight Initiative is that recognition of the right of same-sex couples to marry would pose a great threat to marriage as an institution, and even to the fabric of society itself. While the arguments supporting these claims are varied, they can be divided into three categories.

Marriage and Procreation

First, there are assertions that such marriages would be contrary to the basic moral purpose of marriage. The two major claims in this regard are that: (a) the only legitimate purpose of marriage is to channel procreation into stable units and that since same-sex couples cannot procreate, they should not be able to marry; or (b) only sexual relations designed to lead to procreation are morally acceptable and that marriage should be limited to those who engage in morally acceptable sexual relations.[56]

Because these beliefs generally are associated with the teachings of some religions, their proponents hold them strongly and sincerely. But clearly it is not California policy to link marriage and procreation. Many of the couples who marry each year do not intend to have children, either because they are beyond the age at which the woman can bear a child, because one or both of the partners is infertile, or because the couple prefers to remain childless.

To the contrary, California marriage policy reflects the view that it is desirable for people to marry even if they cannot or do not wish to have children. Procreation is no longer viewed as a civic duty. It is both California policy and a constitutional right that couples may engage in sexual relations where procreation is not the objective. States may not forbid the use of contraceptive devices.[57] In addition, California law supports couples who wish to have a child through means other than sexual intercourse.

In all of these areas, as well as with respect to divorce, California civil law reflects values that differ from those of some religions. The commitment to separation of church and state, to recognizing the diversity of viewpoints on these issues (within and among religions as well), and to respecting individual choice on these highly personal matters, has led policy-makers to focus on secular goals when regulating families. From the perspective of family law policy and constitutional law, arguments that marriage should be limited to people who engage in procreative heterosexual sex should be rejected.


Social Stability

The second category of claims rest, in various ways, on concerns that marriage by same-sex couples will undermine social stability and cohesion in society and, ultimately, the institution of marriage itself. This argument takes several forms. The most frequently made claims are that: centuries of tradition limiting marriage to male/female couples reflects the wisdom that this form of marriage is a critical aspect of social organization; and that if same-sex couples may marry, heterosexuals will lose respect for marriage and for the law.[58]

Proponents of these views fail to be very precise about exactly what harms they foresee or fail to cite to supporting evidence. Often, the claim is made as part of a general argument that homosexuality itself is immoral and a threat to society. Since same-sex marriage has rarely, if ever, been recognized in any legal system in the world, there is no empirical evidence of societies that have suffered as a result of same-sex marriages. Some commentators cite to social theory or to claims about the reasons that various previous societies have gone into “decline” to justify their position.[59] Yet, when subject to critical analysis, predictions about the potential negative impacts are unsupported by theory or historical evidence.

Concerns that marriage was changing in ways that foretold societal disaster have been made for centuries, especially when changes to the rules regulating the structure of marriage or who could marry were being contemplated. For example, historically marriage meant that the woman was subsumed in the man; her property became his and he had the right to control all family decisions. In the 1800s, both England and the United States began enacting laws designed to make marriage into a partnership of legally equal partners. As these changes were being considered, it was not unusual for opponents to predict catastrophe. When England was considering letting wives own property, The Times of London wrote that doing so would “abolish families in the old sense” and “break up society into men and women” creating “discomfort, ill-feeling, and distrust where hitherto harmony and concord prevailed.”[60] When New York State was considering the same change, a legislator argued that his colleagues must remember “the complexity and fragility of marriage as a social institution. … If any single thing should remain untouched by the hand of the reformer, it was the sacred institution of marriage … (which) was about to be destroyed in one thoughtless blow that might produce change in all phases of domestic life.”[61] Just fifty years ago, state officials opposed to allowing interracial marriages in California stated:

“Negroes are socially inferior and have so been judicially recognized. … Marriage between Caucasians and non-Caucasians is socially undesirable because of the physical disabilities of the latter.”[62]
These quotes shed light on the weight to be given various claims in the current debate. In debates about the family, there is a long history of strong resistance to any change. This is not surprising, given that marriage is so central to our own sense of self. Change can be quite threatening; this is especially the case when the change is related to sexual identity. It is natural, and easy, for opponents of change to argue that society should stick to “tradition.” Since significant changes usually cannot be tried as an experiment, proponents of the change cannot prove that it will not cause the predicted harms.

Yet, claims about the likely effects of previous major changes regularly have turned out to be inaccurate. The evidence reviewed earlier indicates that the arguments of harm to society if same-sex couples are able to marry will prove equally false.

Voters also might look to other countries. In the past ten years, a number of countries have given formal status to same-sex unions — Denmark, Holland, Iceland, Norway, and Sweden. They have just been joined by France. Australia treats the long-term partners of homosexuals as spouses for purposes of its immigration policy; Canada, Israel, Namibia, and South Africa also recognize such unions for a variety of purposes. Although the time period has been short, there is no evidence of negative consequences in these countries.

Moreover, within California a significant number of same-sex couples live “as married.” Their status has received various forms of legal and social approval short of legally recognizing them as married. The presence of these couples has not had any destabilizing effect on marriage or on other social institutions in California. Given that same-sex couples’ marriages will never amount to more than a very small part of the total marriages, arguments that providing these relationships the status of marriage could destabilize the institution of marriage or society itself seem very weak.

In fact, in terms of the stability, earlier changes, especially creating greater gender equality, and allowing for divorce, did alter fundamentally the nature and meaning of marriage. These changes had real potential for destabilization. In contrast, authorizing marriage by same-sex couples would bring more people into the institution of marriage, not change its fundamental elements.

Certainly, society would change if same-sex couples were allowed to marry. But, contrary to the concerns of those who oppose such marriages, these changes should be to society’s benefit.


Other Claims

The final category of claims against recognizing same-sex marriages made by some proponents of the Initiative consist basically of what might be called a “parade of horrors.” They include the assertions that recognizing same-sex couples’ lawful marriages will force society to allow other types of units to marry, particularly polygamous couplings and incestuous relations; that same-sex couples’ marriages will produce health risks; and that clergy will be required to perform marriages they disapprove of.[63] None of these claims withstands scrutiny.

Because their proponents rarely present evidence in support of these assertions, they will not be discussed in depth. Clergy are free to preside over whichever marriage ceremonies they wish to preside over and will remain so, pursuant to the separation of church and state. Many clergy already choose to perform commitment ceremonies for gay couples and would undoubtedly be happy to perform marriage ceremonies for these couples. Marriage leads to safer sex among heterosexuals and should do so among gays.

Perhaps the most commonly asserted claim is that recognition of same-sex couples’ marriages will inevitably lead to recognition of polygamy or of incestuous marriages.[64] From both a legal and a policy perspective this claim is baseless. The same argument was made against allowing interracial marriages.

First, as a matter of law, a legislative decision to recognize same-sex marriages creates no obligation for it to recognize any other type of marriage and no constitutional mandate that the state abandon any other limits on the form of marriage. Second, as a matter of fact, same-sex couples are fundamentally unlike polygamous units and sexual unions of a parent and child in ways that would be clear to legislators or judges.[65] The claim that rejection of the Knight Initiative will lead to recognition of these other relationships seems designed to play on fear rather than to promote reasoned discussion.


D. Is Cohabitation an Adequate Alternative?

One of the most common contentions of the Knight Initiative’s proponents is that there is a “difference between respecting a person’s right to same-sex relationships and endorsing same-sex marriages.”[66] This claim often is framed in a manner that implies that gays and lesbians are asking for some type of special treatment by wanting to be able to marry. Opponents of the Initiative raise many objections to this framing of the issue. For example, they point out that, given the extremely limited restrictions on the right of heterosexual couples to marry, recognizing the right of same-sex couples to marry is not endorsing these marriages, it is only treating these couples in a equal manner with other couples.

Again, viewing the issue from the perspective of California family law policy may be helpful. Recognizing the relationships of same-sex couples, but not providing them the opportunity to marry, means that same-sex couples living in marriage-like units are treated as cohabitors under California law. Does this adequately protect their interests and those of their children? Is it an adequate way for the state to structure legal relationships?

Under California law, a number of legal rights are available to a same-sex couple if they contract with respect to them; California law probably goes further than that of any other state in this regard.[67] In addition, same-sex couples in California have acquired a number of rights through domestic partnership laws at the state and local level, as a result of court decisions that treat cohabiting couples similarly to married couples for certain purposes, or as a result of decisions of private employers to include domestic partners as dependents under employer benefit programs.

But even taking all these possibilities into account, same-sex couples are left in a much worse position than they would be if they could marry. To begin with, like opposite-sex couples, same-sex couples would like to be able to assume that their relationship has the backing of law, especially if they are already married and coming here from another state. These couples recognize that the backing of law means that they will automatically be treated as a unit with respect to all of the rights and obligations associated with marriage previously described.

Automatic recognition is very important. Otherwise, the couple needs to draft contracts dealing with significant parts of their relationship, such as how they hold property, what will happen to their assets if one of them dies, will there be any support obligations if the relationship ends. Contracting is not an adequate substitute for marriage law. Many people will not think to contract or will feel that contracting about financial issues is not the way to organize a relationship based on love. Moreover, contracting is costly, financially and emotionally. And enforcing contracts requires court procedures, which may be lengthy and uncertain in outcome.

In addition, there are significant rights and obligations associated with marriage that cannot be obtained or altered by contract, especially with respect to the obligations of third parties, such as businesses, to the couple. And, while California courts have extended some of the rights and obligations of marriage to people in long-term non-marital relationships, in part to accommodate the fact that same-sex couples cannot marry but do have “marriage equivalent” relationships, for the most part, California courts have denied cohabitors, including same-sex partners, a number of important benefits that are available to married couples.

In fact, California law is premised on the view that cohabiting is a less desirable way of organizing intimate relationships than is marriage. As the California Supreme Court recently stated in a case limiting the rights of cohabitors:

“The state has a strong interest in the marriage relationship. … Our emphasis on the state’s interest in promoting marriage is not based on anachronistic notions of morality. The policy of favoring marriage is rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in an organized society.”[68]
The court also was concerned that settling the rights of cohabitors, with respect to each other and with third parties, would impose “a difficult burden on the courts. It would require a court to inquire into the relationship of the partners to determine whether the ‘emotional attachment of the family relationship’ existed between the parties, and whether the relationship was ‘stable and significant.’ … (A)pplication of these factors would not allow for consistent application from case to case.”[69]

If the reasons for encouraging marriage rather than cohabitation for opposite-sex couples are valid, why should this be any different with respect to same-sex couples?


Recognizing Out-of-State Marriages

Although this report has focused on the general question of whether it would be desirable to allow same-sex couples to marry in California, it must be remembered that this is not the issue raised by the Initiative. The only legal effect of passage would be to instruct California courts and other agencies not to recognize such marriages entered into in another state, if the couple later moves to California. This section assesses the special considerations related to a policy of not recognizing legal statuses granted by other states.

Proponents argue that this is a valid way to keep other states from dictating our marriage policy. But a decision not to enable same-sex couples to marry in California is very different from the decision not to recognize the validity of an existing marriage lawfully entered into elsewhere. California’s longstanding policy of recognizing out-of-state marriages is based on a number of reasons. First, there is the need to honor the legal statuses of people who wish to move from one state to another; when a couple marry they rightly assume they are married wherever they go. Second, interstate recognition of the judgments, records, and public acts of every other state is important to protection of a meaningful right to travel, a common meaning to national citizenship, and to the functioning of a national economy. Finally, the “full faith and credit” clause is an important protection for Californians who want to have the statuses they obtain here recognized by other states.

In assessing the recognition issue, two different situations need to be distinguished. One is the situation of a same-sex couple that has lived for a significant period in a state that decides to authorize same-sex couple marriages. After marrying there, a couple at some time decides to move to California. The second is the possibility that same-sex couples living in California would go to another state to marry, if that becomes possible, and then return immediately to California.

A. Long-Term Residents of Other States

Realistically, even if some state authorizes marriage by same-sex couples in the near future, only a very small number of couples residing in that state are likely to move to California. What would be the costs if California decides not to recognize these marriages?

Upsetting Valid Expectations

As previously discussed, it is highly undesirable to undo the relationships that people have legally entered into in another state. Failure to recognize the marriage would mean that the couple’s expectations regarding the legal rights and responsibilities they assumed were established when they married would become meaningless. Once in California they would have to live with great uncertainty about many major aspects of their relationship.

Deterring Travel

Because of the problems just described, some same-sex married couples, if they are knowledgeable about California law, would be deterred from moving to California, since that would mean having their marriage undone. Being able to move from state to state without suffering any penalties is one of the important rights of Americans and protected by the U.S. Constitution.[70] People change residency for many highly desirable reasons — to get better jobs, to be with family, for health reasons. Just as Californians would like to have freedom to move to another state and have their legal statuses recognized, Californians should not want to place substantial barriers on the opportunity of people to move to California.

Creating Legal Uncertainty and Litigation

It is not clear what effect California courts will give to the mandate not to recognize marriages from other states, if the Initiative passes. California courts do recognize what is known as the “public policy exception” to the general rule of marriage validation. According to one decision, “An exception … arises when the marriage is regarded as odious by common consent of nations.”[71] However, no California court has ever used the public policy exception to invalidate a marriage.

There also are serious questions about the constitutionality of the Initiative, as applied to people with strong ties to the state in which they married. If passed, it is likely that the Initiative will be challenged in court, as has happened with many other California initiatives. Legal scholars are divided on how such challenges would fare. Voters, however, may want to consider whether it is wise to adopt a law that may be unconstitutional. Voters must also decide whether it is fair to single out gay and lesbian marriages as the one exception to our general rule of recognition.

B. Californians Moving and Returning

It has been argued that if another state allows same-sex couples to marry, same-sex couples from California will go to that state, marry, and return immediately to California, thereby avoiding California’s current law, which does not provide for such marriages.

Is this likely to happen? No other state presently provides for marriage by same-sex couples. If such marriages become available in the near future, it will almost certainly be as a result of a court decision, since no state legislature currently is considering authorizing same-sex marriages. In that circumstance, the state legislature of that state might well establish a reasonably lengthy residency requirement for people who wanted to get married in the state.[72] This would be a substantial barrier for couples who want to go to that state to marry and then return to California. In addition, if the California legislature thought it desirable, it could pass legislation denying recognition to marriages by people who left California for only a brief time, married, and then returned to California.[73]

Thus, before deciding to vote for the Knight Initiative, voters must consider whether the costs of recognizing what are likely to be a very small number of marriages sufficiently justifies the potential harms.


Domestic Partnership

In assessing whether to vote for the Initiative, some voters might take the position that although they do not want to deprive same-sex couples of the legal benefits associated with marriage, such couples should be given these benefits, and the associated responsibilities, through adoption of domestic partnership laws, not through authorizing same-sex marriage. A number of political figures have taken this position.[74] Supporters of this approach claim that a comprehensive domestic partnership law, with a registration system, could provide most of the privileges and obligations of marriage, without offending those who strongly oppose extending the term “marriage” to same-sex couples.

If the state continues to adhere to its policy of denying same-sex couples the right to marry, there are many reasons to support passage of a comprehensive domestic partnership law for same-sex couples. Such a law would improve their legal situation and help protect the children and partners. However, voters who support this approach should not vote for the Initiative.

First, California presently does not have a comprehensive domestic partnership statute and passage of the Initiative may make it harder to get one passed. State legislators supporting the Initiative consistently have voted against domestic partnership bills that provided for only limited benefits and obligations with respect to the partnership. They will certainly resist enactment of a more comprehensive law if the Initiative passes, citing voter approval of the Initiative.

Second, as discussed previously, people in other states who oppose any form of recognition of same-sex unions have used passage of state laws like that proposed in the Knight Initiative as a basis for bringing legal challenges to state and local domestic partner statutes and other laws providing for equal treatment of gays, arguing that passage of similar initiatives indicates a policy decision to deny any rights to gay individuals. Although courts in other states have so far rejected these claims, the lawsuits create legal uncertainty and it is possible that a court will accept some such claims.


Conclusion

The Knight Initiative raises issues of deep emotional significance. Marriage has great symbolic as well as practical meaning. We all have a vision of what marriage means. Legal rights and obligations are only a small part of that understanding. It is hoped that the analysis in this report will aid voters in thinking through these extremely important issues.

The authors of this report believe that the evidence clearly indicates that it would be beneficial to children and families if same-sex couples were able to marry in California. But voters need not reach this conclusion in order to decide to vote against the Knight Initiative. The issue before the electorate is not whether to permit same-sex couples to marry in California. It is only whether California should adopt, even before any state has authorized marriages of same-sex couples, a policy that such marriages will not be recognized in California if the couple moves here.

Not recognizing such marriages would be harmful to both the adults and children in these families. A legal and emotional status that they had established will be taken from them. They would lose the many rights and obligations that are attached to marriage. It would create great uncertainty for both the couple and those who deal with them regarding their legal status. The legal relationship between the non-biological parents and their children could be altered; older children will have to cope with the stigma of seeing their parents’ marriage rejected by the state.

While the harm to these couples and their children is clear, the claims of the Knight Initiative’s proponents that society would suffer by recognition of these marriages are not supported by the facts. There is no reason to believe that same-sex marriages will function any differently from opposite-sex marriages in terms of commitment, stability, and parenting, or that the recognition of these marriages will have negative effects on society in general.

Contrary to the claims of the Initiative’s proponents, not recognizing these marriages would undermine California policy towards marriage and children. The state has a special interest in supporting the commitments of those who have married. California family policy favors helping couples establish and remain in a permanent relationship through which they provide each other with emotional and financial support. It seeks to encourage childrearing in two parent units, with each parent having a legal relationship to the child.

Moreover, passage of the Initiative is very likely to be harmful to the 400,000 same-sex couples, and their children, living in California. Californians have shown increasing concern for the well-being of these families. Their relationships are now recognized in California statutes, which provide for a domestic partner registry with public benefits to the same-sex domestic partners of state employees, in the ordinances and policies of many California cities and counties, and in the benefit policies of an increasing number of private businesses. Californians have elected to state and local office a number of public officials who live in such units.

As has been discussed, passage of the Initiative will stigmatize these families. It may lead to litigation threatening their existing rights. It very likely will make further legislation extending domestic partnership laws more difficult to enact.

Since no other state presently authorizes marriage by same-sex couples, there is no urgency for addressing the issues raised by the Initiative. Failure of the Initiative to pass would leave us with the status quo. In the coming years, Californians undoubtedly will be asked to consider how to recognize and protect the relationships of the hundreds of thousands of gay and lesbian couples, and their children, living in our communities. Much public discussion will be needed. The Initiative is the wrong way to begin this process.


Appendix A

Benefits and Obligations Connected with Marriage

These charts list just some of the rights and responsibilities which California law extends to married couples, but not to unmarried couples. With respect to cohabitors’ contract rights, the scope and enforceability of contractual rights is dependent on judicial decision.

Laws furthering emotional bonds
Benefit or responsibility granted to or imposed on married couples? granted to or imposed on couples who cannot marry?
Right to be appointed guardian of injured or ailing partner. Yes No
Right to be appointed conservator by a court if partner is incapacitated. Yes(1) No
Right to decide whether to have an autopsy performed and to make funeral arrangements after the death of a partner. Yes(2) Contract possible
Right not to testify against a partner in a trial or similar proceeding. Yes(3) No
Private communications between partners are privileged and confidential and cannot be disclosed. Yes(4) No
Right to take up to 12 weeks of unpaid leave from work in order to care for a sick partner or child. Yes(5) No
Right to visit partner in state correctional facilities. Yes No(6)
(1) Cal. Prob. Code sec. 1812.
(2) Cal. Gov. Code sec.. 27520, Cal. Prob. Code sec. 7100(a)(2).
(3) Cal. Evid. Code sec. 970.
(4) Cal. Evid. Code sec. 980.
(5) Cal. Gov. Code sec. 12945.2.
(6) In re Cummings, 30 Cal.3d 870 (1982) (allowing rules denying visitation rights to non-marital partners).

Laws Furthering Child-Rearing
Benefit or responsibility* granted to or imposed on married couples? granted to or imposed on couples who cannot marry?
Right to presumption of paternity if partner has biological child. Yes(7) No
Husband becomes legal parent of child born through artificial insemination. Yes(8) No
Prohibition on formally dissolving the partnership without meeting the legal requirements of divorce. Yes(9) Contract possible
Right to be considered a “parent” and having a set of child custody and visitation rights that flow from that designation. Yes No(10)
Stepparent adoption laws apply. Yes(11) No
(7) Cal. Fam. Code sec. 7540
(8) Cal. Fam. Code sec. 7613.
(9) Cal. Fam. Code secs. 2310, 2330, 2339, for example.
(10) A cohabitant is not automatically a “parent” (unless the child is the cohabitant’s biological or formally adopted child) and thus can obtain custody and visitation rights only under the “best interests of the child” standard. Cal. Fam. Code sec. 3041.
(11) Cal. Fam. Code sec. 9000 et seq.

Laws Furthering Economic Sharing
Benefit or responsibility* granted to or imposed on married couples? granted to or imposed on couples who cannot marry?
Property acquired by either partner during relationship is community property in which each partner has an equal one-half interest. Yes(12) Contract possible
Right of equal management and control of community property during partnership. Yes(13) Contract possible
Right to one-half of the accumulated property on dissolution of the partnership. Yes(14) Contract possible
Right to financial support during partnership, which cannot be waived or limited by contract. Yes(15) No
Right to support after dissolution of partnership (alimony, e.g.). Yes(16) Contract possible
Right to temporary support during pendency of dissolution. Yes(17) Contract possible
Right, after dissolution of the partnership, to reimbursement for expenses paid to educate partner during the course of a partnership. Yes(18) Contract possible
Right to inherit all of the community property and one-half the decedent partner’s separate property if the decedent dies intestate (i.e. without a will). Yes(19) No
Limit on spouses’ rights to disinherit each other. Yes(20) Contract possible
Automatic right to confidential relationship which require the courts to scrutinize carefully contracts, property transfers, and other business dealings for evidence of unfairness to one another. Yes(21) No
Right, as a matter of first priority, to be appointed administrator of a decedent partner’s estate if the decedent dies intestate or did not name an executor in her or his will. Yes(22) No
Agreements (i.e. contracts) between partners are legally unenforceable if they would “promote dissolution” of the partnership, alter their legal relations, or waive or limit the support obligation of either partner (i.e. an inability to avoid legal obligations to support each other and children). Yes(23) No
Right to seek civil damages for the wrongful death of a partner. Yes(24) No
Right to seek civil damages for negligent infliction of emotional distress when a partner is killed due to the negligence of others. Yes No(25)
Right to seek civil damages for loss of consortium when a partner is killed. Yes No(26)
Right to file joint tax returns. Yes(27) No
Right to gift tax exemptions and deductions. Yes(28) No
Right to marital deduction from estate tax. Yes(29) No
Automatic right to receive unemployment benefits when a partner voluntarily resigns from employment and chooses to accompany his or her partner to another location. Yes(30) No
(12) Cal. Fam. Code secs. 751, 760.
(13) Cal. Fam. Code secs. 1100, 1102.
(14) Cal. Fam. Code sec. 2550.
(15) Cal. Fam. Code secs. 720, 1612(a)(7).
(16) Cal. Fam. Code sec. 4330 et seq.
(17) Cal. Fam. Code sec. 3600 et seq.
(18) Cal. Fam. Code sec. 2641.
(19) Cal. Prob. Code secs. 100, 101, 6401, 6402, 6402.5, 6414.
(20) Cal. Prob. Code sec. 21610.
(21) Cal. Fam. Code sec. 721
(22) Cal. Prob. Code secs. 8440, 8460, 8461(a), 8462.
(23) Cal. Fam. Code secs. 1620, 720.
(24) Cal. Civ. Pro. sec. 377.60(b).
(25) Elden v. Sheldon, 46 Cal. 3d 267 (Cal. 1988) (refusing to extend these rights to unmarried cohabitants).
(26) Elden v. Sheldon, 46 Cal. 3d 267 (Cal. 1988) (refusing to extend these rights to unmarried cohabitants).
(27) Cal. I.R.C. sec. 6013.
(28) Cal. I.R.C. sec. 2523.
(29) Cal. I.R.C. sec. 2056.
(30) Cal. Unemployment Insurance Code sec. 1256.


Appendix B: The Author

Michael S. Wald is the Jackson Eli Reynolds Professor of Law at Stanford Law School. He also holds appointments in the School of Education and the Department of Sociology. He has taught courses on family law and children and the law at Stanford since 1967. From 1984 to 1987, he served as director of the Stanford Center for the Study of Families, Children and Youth.

Professor Wald has held numerous public positions serving children and families. He has been the Director of the Department of Human Services for the City and County of San Francisco, Deputy General Counsel of the U.S. Department of Health and Human Services, Chairman of the California State Advisory Committee on Child Abuse and Neglect, and a member of the National Academy of Sciences Panel on Child Development Research and Public Policy.

Among his publications are The Conditions of California’s Children (1989), for which he was the general editor, and Protecting Abused and Neglected Children (with Merrill Carlsmith and P.H. Leiderman) (1988).

Lynne Echenberg, Michael Evans, Susan Hightower, Katherine Keating, Severa Keith, and Elizabeth Lester are students at Stanford Law School.

The Stanford Institute for Research on Women and Gender supports and funds research by faculty, scholars and students on important issues concerning women and gender.

The Stanford Center on Adolescence is a multi-disciplinary research and training institute that supports the work of scholars concerned with child and adolescent development.


Endnotes

[1] Proposition 22 on the March 7, 2000, primary ballot.[Jump back to text]

[2] CAL. FAM. CODE sec. 300.[Jump back to text]

[3] CAL. FAM. CODE sec. 308.[Jump back to text]

[4] The March 1998 Current Population Reports data state that there are approximately 1,600,000 same-sex couples living in the United States. According to the 1990 Census Public Use Microdata Sample and calculations by Jed Kolko (Harvard University), 28 percent of gay male couples and 20 percent of lesbian couples live in California. Thus, we estimate that 162,000 lesbian couples and 242,200 gay male couples live in California.[Jump back to text]

[5] Both the Catholic and Mormon Churches are financially supporting the “Yes on Knight Campaign.”[Jump back to text]

[6] See, e.g., Rev. Alan Jones, Editorial, “It’s Knight’s Initiative That Appears Unnatural,” Los Angeles Times, Nov. 10, 1999, p. A17.[Jump back to text]

[7] See CAL. CIV. CODE former sec. 63. The statute was repealed and moved to Cal. Civ. Code sec. 4104 in 1969, and was moved with no substantive change to Cal. Fam. Code sec. 308 in 1994.[Jump back to text]

[8] See, e.g., McDonald v. McDonald, 6 Cal. 2d 457, (1936); In re Marriage of Smyklo, 180 Cal. App. 3d 1095 (1986); In re Dalip Sing Bir’s Estate, 83 Cal. App. 2d 256 (1948).[Jump back to text]

[9] CAL. FAM. CODE sec. 301. However, minors can marry with written consent of at least one of both spouse’s parents and court approval. CAL. FAM. CODE sec. 302.[Jump back to text]

[10] See, e.g., McDonald v. McDonald, 6 Cal. 2d 457, 58 P.2d 163 (1936).[Jump back to text]

[11] U.S. CONST. art. IV, sec. 1.[Jump back to text]

[12] See William P. Hogoboom & Donald B. King, California Practice Guide, Family Law, Chapter 19 sec. 19:23 (1999); 7 Witkin, SUMMARY OF CAL. LAW (9th ed., 1999 supp.) Const Law, sec. 27, p. 20.[Jump back to text]

[13] See No on Knight Campaign, Threats Posed by Anti-Marriage Laws <http://noonknight.org/threatsposed.html> (viewed Oct. 27, 1999); see also, e.g., In re Thompson, 1999 WL 787517, n.2 (Tenn. Ct. App. 1999) (finding Tennessee’s definition of marriage as between a man and a woman relevant in denying the non-biological mother in a lesbian couple visitation with the child she had raised from birth following the break-up of the couple’s relationship).[Jump back to text]

[14] See, e.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252 (1981).[Jump back to text]

[15] These issues have been debated in a number of books and other publications. We have looked at the arguments put forth by proponents and opponents at the following Web sites: Robert H. Knight, Family Research Council: Answers to Questions About the Defense of Marriage <http://www.frc.org/insight/is96c2hs.html> (viewed Oct. 29, 1999); Marriage Law Project, Marriage Law Project <http://marriagelaw.cua.edu> (viewed on Oct. 29, 1999); No on Knight Campaign, No on Knight <http://www.noonknight.org> (viewed on Oct. 27, 1999); Protection of Marriage Committee, California Protection of Marriage Initiative <http://www.protectmarriage.org> (viewed on Oct. 27, 1999); State of Hawaii Report of the Commission on Sexual Orientation and the Law, Chapter 5 Pt. 1: Minority Opinion <http://www.hawaii.gov/lrb/rpts95/sol/cpt5a.html> (viewed on Nov. 10, 1999). The following books also have been useful in articulating arguments for and against same-sex couple marriage: William N. Eskridge, Jr., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (New York: Free Press, 1996); E. J. Graff, What is Marriage For? (Boston: Beacon Press, 1999); Same-Sex Marriage: The Moral and Legal Debate, Robert M. Baird & Stuart Rosenbaum, eds. (Amherst, N.Y.: Prometheus Books, 1997); Same-Sex Marriage: Pro and Con, Andrew Sullivan & Joseph Landau, eds. (New York: Vintage Books, 1997).[Jump back to text]

[16] CAL. FAM. CODE sec. 300.[Jump back to text]

[17] CAL. FAM. CODE sec. 420.[Jump back to text]

[18] See CAL. FAM. CODE secs. 300, 301, 302, 2200.[Jump back to text]

[19] Elden v. Sheldon, 46 Cal.3d 267, 274-75 (1988).[Jump back to text]

[20] The purposes of marriage have changed over time. See E. J. Graff, What is Marriage For? (Boston: Beacon Press, 1999). There is substantial debate over many aspects of state regulation of marriage.[Jump back to text]

[21] Bruce C. Hafen, “The Constitutional Status of Marriage, Kinship, and Sexual Privacy--Balancing the Individual and Social Interests,” Vol. 81, No. 3, Michigan Law Rev. (Jan. 1983), pp. 476-77.[Jump back to text]

[22] CAL.PROB. CODE sec. 1812.[Jump back to text]

[23] A case that received substantial national attention involved Sharon Kowalski. See In re Guardianship of Kowalski, 478 N.W.2d 790 (Minn. App. 1991).[Jump back to text]

[24] CAL. GOV. CODE sec. 12945.2.[Jump back to text]

[25] CAL. FAM. CODE sec. 760.[Jump back to text]

[26] CAL. FAM. CODE sec. 4300.[Jump back to text]

[27] CAL. CIV. PRO. sec. 377.60(b).[Jump back to text]

[28] CAL. PROB. CODE secs. 100, 101, 6401, 6402, 6402.5, 6414.[Jump back to text]

[29] See generally CAL. FAM. CODE secs. 9000 et seq.; 10 Witkin, SUMMARY OF CAL. LAW (9th ed., 1999 supp.) Parent & Child, sec. 393, p. 439.[Jump back to text]

[30] For a discussion of second-parent adoptions, see Emily Doskow, “The Evolution of the ‘Second’ Parent,” San Francisco Attorney (Oct./Nov. 1999), p. 26.[Jump back to text]

[31] CAL. FAM. CODE sec. 7613(a).[Jump back to text]

[32] Laws criminalizing sodomy and other sexual behaviors posed a constant threat to these couples. Nineteen states still have such laws.[Jump back to text]

[33] We draw our information from a number of sources. 1998 and 1990 Census Bureau data provides information from national samples regarding the number of same-sex couples. A major study of sexual behavior in the United States conducted by researchers at the University of Chicago in 1996 provides additional information from a large, national sample about the number of same-sex couples and the characteristics of their relationships. This study includes heterosexual couples, so comparisons are available. Edward O. Laumann, John Gagnon, Robert T. Michael and Stuart Michaels, The Social Organization of Sexuality: Sexual Practices in the United States (Chicago: U. of Chicago Press, 1994). In addition, there have been several recent surveys of homosexual individuals and couples conducted by magazines serving the gay community, regarding relationship patterns and behavior. While such surveys are subject to response bias, much like the surveys conducted by Redbook or Parent Magazine, they do provide useful information about the respondents. Finally, a number of research studies provide more qualitative information comparing heterosexual and same-sex couples, although all of these have small sample sizes.[Jump back to text]

[34] 1998 Current Population Reports, U.S. Bureau of the Census, March 1998, “Table 8: Marital Status and Living Arrangements.”[Jump back to text]

[35] Id.[Jump back to text]

[36] See id.; 1998 Current Population Reports, U.S. Bureau of the Census, March 1998, “Table C: Married-Couple Householders by Sex;” 1990 United States Census of Population: Social and Economic Characteristics, U.S. Bureau of the Census, 1990, “Table 16: Fertility and Household and Family Composition.”[Jump back to text]

[37] See Edward O. Laumann et. al., note 33, at p. 303.[Jump back to text]

[38] The number of people reporting to the Census Bureau that they live with a same-sex partner increased dramatically between 1990 and 1998. The 1990 decennial census identified 145,000 same-sex partnerships; thus, there was an elevenfold increase by 1998 (opposite-sex non-married couples increased by 33 percent). We cannot tell how much of the increase reflects a greater willingness of same-sex partners to identify themselves and how much is an increase in the actual number of couples; both factors are undoubtedly operating. The CPR relies on interviews, not questionnaires. Researchers familiar with census figures have suggested that gay couples may be more responsive in interviews than in questionnaires.[Jump back to text]

[39] There have been three major magazine surveys of the gay and lesbian communities. See Janet Lever, “Lesbian Sex Survey,” Advocate (Aug. 22, 1995), p. 29; Janet Lever, “The 1994 Advocate Survey of Sexuality and Relationships: The Men,” Advocate (Aug. 23, 1994), p. 23; Bryant & Demian, “Partners National Survey of Lesbian and Gay Couples,” Vol. 1, No. 2, Journal of Gay and Lesbian Social Services (1994), pp. 101-117; Larry D. Hatfield, “New Poll: How U.S. Views Gays,” S.F. Examiner, June 6, 1989, at A-19. In addition, in the late 1970s, two sociologists from the University of Washington conducted a large study examining the relationships of American couples, including 3,500 gay and lesbian couples. Philip Blumstein & Pepper Schwartz, American Couples: Money, Work, Sex (New York: William Morrow & Co., 1983).[Jump back to text]

[40] For a review of this research, see Lawrence A. Kurdek, “Lesbian and Gay Couples,” in Lesbian, Gay and Bisexual Identities Over the Lifespan: Psychological Perspectives, A.R. D’Augelli & C. J. Patterson, eds. (New York: Oxford U. Press, 1995), pp. 243-261.[Jump back to text]

[41] See Edward O. Laumann et. al., note 33, at pp. 3-8, 78, 88-89.[Jump back to text]

[42] See Philip Blumstein & Pepper Schwartz, note 39, at 324.[Jump back to text]

[43] Id.[Jump back to text]

[44] Lawrence A. Kurdek, “Relationship Outcome and their Predictors: Longitudinal Evidence from Heterosexual Married, Gay Cohabiting, and Lesbian Cohabiting Couples,” Vol. 60, J. of Marriage and the Family (Aug. 1998), pp. 553-68.[Jump back to text]

[45] See sources in note 39.[Jump back to text]

[46] See Edward O. Laumann et. al., note 33, at pp. 5-8.[Jump back to text]

[47] See Santosky v. Kramer, 455 U.S. 745 (1982).[Jump back to text]

[48] These studies involve two different groups of children. The majority of the studies, especially those done in the 1970s and 1980s, involved children living with a gay parent following that parent’s divorce from the child’s other biological parent. Almost all of the children had lived for a period of time with both biological parents, which meant they also had lived with both a father and mother. When studied, some of the children were living with a single gay parent, other children were living with one biological parent and that parent’s new same-sex partner; virtually all of the parents were female. Most of these children were over ten at the time of the research. One study, done in England, includes a follow-up of the children fourteen years later, when the children ranged from 17 to 35 years of age (average age 24). In essence, these studies are the equivalent of the numerous studies of children following a divorce, except that the children in these studies were living with a gay parent. The research usually included, for comparison purpose, a group of children living with a heterosexual parent following divorce.

Many of these studies have methodological limitations, especially with respect to their small sample sizes and recruitment methods. Usually, some parents volunteered to participate in the study and recommended another possible participant to the researchers; this process of self-selection limits a study’s generalizability. In addition, almost all of the children in the divorce studies had lived with parents of both sexes for a period of time. Thus, these studies cannot tell us about the effect of living from birth on with parents of the same sex. The types of methodological problems faced by the researchers are typical of research related to divorce.

There also are five more recent studies that have looked at children conceived by artificial insemination and raised from birth by a gay mother. Some of the children were living with a single parent; most were living with their biological mother and her partner. In the latter situation, some of the children had been adopted by the partner; in all cases both adults considered themselves the child’s parents. While the samples in these studies were small and the children were all under ten years of age, the researchers were able to include all children born through artificial insemination in a given geographic area at a given time, thereby eliminating sample bias. These studies were methodologically sophisticated, utilizing teacher evaluations, testing of the children, and parental reports.

For reviews of the literature, see Julie S. Gottman, “Children of Gay and Lesbian Parents,” Vol. 14, Marriage and Family Review (1990), pp. 177-196; Cheryl A. Parks, “Lesbian Parenthood: A Review of the Literature,” Vol. 68, No. 3, American Journal of Orthopsychiatry (July 1998), pp. 376-389. Among the best primary studies are: Fiona L. Tasker & Susan Golombok, Growing Up in a Lesbian Family: Effects on Child Development (New York: The Guilford Press, 1997); Charlotte J. Patterson and Raymond W. Chan, “Gay Fathers,” in The Role of the Father in Child Development, 3d ed. (M.E. Lamb ed., 1997) pp. 245-260; Chan, Raboy, and Patterson, “Psychosocial Adjustment Among Children Conceived Via Donor Insemination By Lesbian and Heterosexual Mothers,” Vol. 69, Child Development (April 1998), pp. 443-457; Green, Mandel, Hotvedt, Gray, and Smith, “Lesbian Mothers and Their Children: A Comparison with Solo Parent Heterosexual Mothers and Their Children,” Vol. 15, No. 2, Archives of Sexual Behavior, (April 1986), pp. 167-184; Ghazala Javaid, “The Children of Homosexual and Heterosexual Single Mothers,” Vol. 23, No. 4, Child Psychiatry and Human Development (Summer 1993), pp. 235-248; D’Augelli, Hershberger, and Pilkington, “Lesbian, Gay, and Bisexual Youth and Their Families: Disclosure of Sexual Orientation and Its Consequences,” Vol. 68, No. 3, American Journal of Orthopsychiatry (July 1998), pp. 361-371; Patterson, Hurt, and Mason, “Families of the Lesbian Baby Boom: Children’s Contact with Grandparents and Other Adults,” Vol. 68, No. 3, American Journal of Orthopsychiatry (July 1998), pp. 390-99; Charlotte J. Patterson, “Families of the Lesbian Baby Boom: Parents’ Division of Labor and Children’s Adjustment,” Vol. 31, No. 1, Developmental Psychology (January 1995), pp. 115-124; Flaks, Ficher, Masterpaqua, and Joseph, “Lesbians Choosing Motherhood: A Comparative Study of Lesbian and Heterosexual Parents and Their Children,” Vol. 31, No. 1, Developmental Psychology (January 1995), pp. 105-114.[Jump back to text]

[49] American Psychological Association, “Lesbian and Gay Parenting: A Resource for Psychologists” (1995) <http://www.apa.org/pi/parent.html#II>. ANNOTATED BIBLIOGRAPHY> #(Nov. 20, 1999). This same conclusion was reached by the trial court in Hawaii, in the case challenging Hawaii’s ban on marriage by same-sex couples. The state tried to justify its policy by claiming that the policy was needed to protect children. After hearing from a number of experts on child development, the court concluded that there was no respectable evidence that children were harmed by being raised by a gay or lesbian parent. Baehr v. Miike, 1996 WL 694235 (Hawai’i Cir. Ct. 1996).[Jump back to text]

[50] Tasker & Golombok, note 48, at pp. 40, 42.[Jump back to text]

[51] Id. at 78-97.[Jump back to text]

[52] Relying on community stigma as a basis for regulating marriage is very troublesome. Claims that children would be harmed by social stigma were used in the past to justify laws against interracial marriages and, in more recent times, to justify a decision to take away custody of a child from a mother who, following a divorce, remarried a person of a different race. These arguments were rejected by the courts.[Jump back to text]

[53] See Lynn D. Wardle, “The Potential Impact of Homosexual Parenting on Children” 1997 U. of Illinois Law Rev., p. 833-920.[Jump back to text]

[54] See Edward O. Laumann et. al., note 33, at p. 295.[Jump back to text]

[55] See, e.g., Tasker & Golombok, note 50 at pp. 107, 111-12.[Jump back to text]

[56] See John M. Finnis, “Law, Morality, and ‘Sexual Orientation,’” Vol. 69, Notre Dame Law Rev. (1994), 1049-76, at 1064; Robert H. Knight, “How Domestic Partnerships and ‘Gay Marriage’ Threaten the Family,” in Same-Sex Marriage: The Moral and Legal Debate, Robert M. Baird & Stuart Rosenbaum, eds., (Amherst, N.Y.: Prometheus Books, 1997), pp. 118-119.[Jump back to text]

[57] See Griswold v. Connecticut, 381 U.S. 479 (1965).[Jump back to text]

[58] See Robert Byrd, “Senate Debate on the Defense of Marriage Act,” in Same-Sex Marriage: Pro and Con, Andrew Sullivan & Joseph Landau, eds. (New York: Vintage Books, 1997), p. 232; Robert H. Knight, “How Domestic Partnerships and ‘Gay Marriage’ Threaten the Family,” in Same-Sex Marriage: The Moral and Legal Debate, Robert M. Baird & Stuart Rosenbaum, eds., (Amherst, N.Y.: Prometheus Books, 1997), pp. 109, 114-15, 118; James Q. Wilson, “Against Homosexual Marriage,” in Same-Sex Marriage: Pro and Con, Andrew Sullivan & Joseph Landau, eds. (New York: Vintage Books, 1997), p. 161.[Jump back to text]

[59] See Robert H. Knight, note 58, at p. 117.[Jump back to text]

[60] E.J. Graff, What is Marriage For? (Boston: Beacon Press, 1999), at p. 31.[Jump back to text]

[61] Id.[Jump back to text]

[62] Perez v. Sharp, 32 Cal. 2d 711 (1948).[Jump back to text]

[63] Robert H. Knight, note 58, at pp. 114-15, 116, 117-18; State of Hawaii Report of the Commission on Sexual Orientation and the Law, Chapter 5 Pt. 1: Minority Opinion <http://www.hawaii.gov/lrb/rpts95/sol/cpt5a.html> (viewed Nov. 10, 1999); State of Hawaii Report of the Commission on Sexual Orientation and the Law, Chapter 5 Pt. 2: Minority Opinion (cont.) <http://www.hawaii.gov/lrb/rpts95/sol/cpt5b.html> (Nov. 10, 1999).[Jump back to text]

[64] Ron Unz, Editorial, “Gay Marriages Today, Polygamy Tomorrow?” San Francisco Chronicle, Oct. 8, 1999, p. A25.[Jump back to text]

[65] Rules limiting people to one spouse reflect the concern that a person married to several people will not be able to adequately assume the economic obligations of marriage (including those that arise in the case of divorce) and that the potential for developing the kinds of intimacy and emotional growth that are seen as important elements of marriage are unlikely to be achieved in situations where a person has more than one spouse. Allowing marriages between parents and children would entail numerous potential harms to children and families.[Jump back to text]

[66] Protection of Marriage Committee, California Protection of Marriage Initiative <http://www.protectmarriage.org> (viewed on Oct. 27, 1999).[Jump back to text]

[67] For a discussion of the rights of non-marital partners and the opportunities for these partners to simulate some rights of marriage through private contract, see William P. Hogoboom & Donald B. King, California Practice Guide, Family Law, Chapter 20 (1999).[Jump back to text]

[68] Elden v. Sheldon, 46 Cal.3d 267, 274-75 (1988).[Jump back to text]

[69] Id. at 275-76.[Jump back to text]

[70] See, e.g., Saenz v. Roe, 526 U.S. 489 (1999) (holding that California durational residency requirement for welfare benefits violated the Fourteenth Amendment right to travel).[Jump back to text]

[71] McDonald v. McDonald, 6 Cal. 2d 457, 459 (1936).[Jump back to text]

[72] Residency requirements have been upheld by the courts in connection with divorce. See Sosna v. Iowa 419 U.S. 393 (1975).[Jump back to text]

[73] The California Supreme Court discussed this sort of legislation, giving the example of Massachusetts, in McDonald v. McDonald, 6 Cal.2d 457, 459 (1936): “Each state may follow its citizens into another state and regulate the status of its own citizens, especially such a status as the marriage relation. … The Legislature of California has not enacted a statute that such marriages shall have no validity here.”

The U.S. Supreme Court has upheld a state’s right to exercise its own divorce laws over its domiciliaries. See Williams v. North Carolina, 325 U.S. 226, 229 (1945) (“Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil.”); see also Estin v. Estin, 334 U.S. 541, 546 (1948) (“The interest of the state extends to its domiciliaries. The State should have the power to guard its interest in them by changing or altering their marital status and by protecting them in that changed status throughout the farthest reaches of the nation.”)[Jump back to text]

[74] Democratic presidential hopefuls Al Gore and Bill Bradley, for example, both have expressed support for domestic partnership laws. See, e.g., E.J. Dionne Jr., Editorial, “… Small Differences,” The Washington Post, Oct. 29, 1999, p. A31. However, both Gore and Bradley also have said they would vote against the Knight Initiative if they were California residents. See Sandra Sobieraj, “Bradley Would Promote Gay Rights,” The Associated Press, Sept. 17, 1999.[Jump back to text]


This paper was prepared with the assistance of
Susan Hightower, Katherine Keating, Elizabeth Lester,
Lynne Echenberg, Michael Evans, and Severa Keith.

© December 1999, Michael S. Wald, Jackson Eli Reynolds Professor of Law
The Stanford Institute for Research on Women and Gender
The Stanford Center on Adolescence
Stanford University, 559 Nathan Abbott Way, Stanford, CA 94305-8610
mwald@leland.stanford.edu


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