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Thursday, January 11, 2007

Meta Gay Marriage: In a Good Way

posted by on January 11 at 12:15 PM

The five gay legislators in Olympia (but mostly two of them: Sen. Ed Murray (D-43) and Rep. Jamie Pedersen (D-43) …) unveiled two bills at a press conference in Olympia this morning.
One bill, a long shot that Murray acknowledged will “move slowly” —refusing to make any prediction about how many sessions it will take to pass, was a bill for full marriage equality for gays and lesbians.

The other bill, which Pedersen said would pass this session in the House, is a domestic partnerships bill. This bill would grant about 10 rights to domestic partners—like allow domestic partners to have hospital visitation rights; allow domestic partners to give informed consent on hospital decisions; allow partners to make funeral arrangements; and allow domestic partners to inherit property in the absence of a will.

It leaves a host (423 and counting according to the latest study) of other rights off the table, like access to your partner’s health care or your parnter’s pension benefits; the ability to file a wrongful death suit if you partner is killed; and the right of “spousal privilege” —which would shield a domestic partner (like a husband or wife) from being compelled to testify against one another.

Indeed, the legislators have decided to take a bite size approach.

(I cannot link the bills yet because they haven’t been officially filed.)

The incremental approach is certainly about gaining rights, but it’s also about highlighting what rights gays and lesbians don’t have. Murray and Pedersen believe this is a way to dramatize the issue for those who may oppose gay marriage.

Murray told me:

By emphasizing issues in the domestic partnership bill—being able to visit your partner in the hospital and bury your partner—we emphasize two of the 400.. 500 rights of marriage that gays and lesbians don’t have. Every year we’ll introduce more of these and people are going to get the picture that we just need to do the whole thing

The idea here is a multiple bill strategy to get people educated. If we just focused on marriage we’d just have this huge culture war.

By breaking out: “This is what we’re asking for” ….hundredes of things down the line…to be able to visit our partners… to have them on our health care… we educate people to the reality. We show people that we need to be able to protect the person we’re with or have access to their property.

Pedersen added:

What’s central to going about it this way is that we can make this progress this year. If we were going to do a symbol bill where we don’t think we’re going to pass it, why don’t we just do a marriage bill [on its own]? Or do comprehensive domestic partnership legislation. We’re doing what we can do this year, knowing that we’re going to keep on doing this and keep on adding things every session until we get marriage.

The reason for including the specific rights they did is because these rights are all things a gay or lesbian could do if they paid lawyers enough. “This has an economic justice component too,” Pedersen says. “You’ve got people who can’t afford to have lawyers make all these fancy expensive arrangements,” that straight people get for the cost of a marriage license.

Domestic partners—and there’s a straightforward definition of who qualifies including “living together” and “consent”—would apply for a license at the state and pay a small fee.

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That domestic partnership bill is barely better than nothing at all. It leaves out inheritance rights, powers of attorney, a codification of custody rights, all the most important rights. This sucks.

Posted by Gitai | January 11, 2007 12:20 PM

I think that although this is not as comprehensive as some would like, I agree that it helps to educate all people as to what rights are missing in our society. I don't think your average person even thinks twice about those rights. The "little bit at a time" legislation keeps putting the issues of g/l/b on table, with better chances of success. I think its a great strategy.

Posted by Monique | January 11, 2007 12:33 PM

Gitai@2: Did you even read beyond the bill descriptions? The point of the bill, beyond just expanding rights to some very basic levels, is to draw attention to the rights gay couples don't have. It's a great strategy.

Posted by switzerblog | January 11, 2007 12:42 PM

Sorry, meant Gitai @ 1. Sorry, Monique.

Posted by switzerblog | January 11, 2007 12:43 PM

Having made funeral arrangements and then being the executor of the estate of two dear friends - partners of nearly 40 years - this bill is a tremendous step forward. Had it not been for the humanity and mindfulness of certain parties, my experience - and most importantly, the wishes of my friends - might have been very different and never happened.

These are definitely steps in the right direction.
Le mieux est l'ennemi du bien.

Posted by Laurence Ballard | January 11, 2007 12:56 PM

This is a great strategy - people who oppose extending domestic partnerships rights that most people take for granted (I would say that a lot of these rights are unofficially extended to straight, non-married couples) will have a hard time coming up with solid opposition.

Posted by Soupytwist | January 11, 2007 1:03 PM

I just don't fucking buy it. I'm impatient, and I can't settle for half measures anymore. My husband and I got married twice, once in Portland and again in Vancouver when our Portland marriage was dissolved, and I'm not gonna be a bit satisfied with this bone thrown my way. Nothing ever gets achieved by going halfway. Politics always end in compromise, so if we ask for domestic partnerships, we end up with a handful of new rights. If we ask for marriage, we might get marriage rights without the name.

Posted by Gitai | January 11, 2007 1:19 PM

Gitai: Read the full post. You're missing the fucking point.

Posted by switzerblog | January 11, 2007 2:10 PM

Why not go with a scheme similar to the California Domestic partnership law, which grants rights very close to what the state can grant to married couples?

I understand needing to educate people, but this seems a bit too restrained. Surely a more comprehensive bill could successfully be introduced in this year's session.

Posted by Sachi Wilson | January 11, 2007 2:23 PM

What I'm wondering about is why aren't there any straight sponsors of this bill (or are there? If so, why weren't their names in the paper?) Do no straight legislators believe in this enough to have signed on? Or did they not ask any straight legislators to sign on? If not, why not? What's wrong with building coalitions?

This is a basic civil rights issue and it seems like straights should be involved if its to succeed.

Posted by why | January 11, 2007 2:30 PM

People don't really notice incremental change so maybe this is a good strategy.

Did African-Americans get all of their rights in the 1964 Civil Rights Act or did they have incremental successes?

Posted by okay | January 11, 2007 3:01 PM

Was that Pedersen quotation verbatim, because it seems like it should be: “You’ve got people who can’t afford to have lawyers make all these fancy expensive arrangements that opposite-sex couples get for less than $50.”

Posted by keshmeshi | January 11, 2007 3:04 PM

It is a fine strategy, provided they continue it year after year.

Of course most of us commie lefty homos want gay marriage and we want it now. And the right wing wackos would probably prefer to simply gas us all and will fight any and every effort to grant gays any rights at all. But there are lots of people in the middle that can be swayed over time.

By offering both bills, you'll get some people in the middle who basically say: "Marriage" for gays? Ack!!! No. Okay, we'll give you these domestic partnership rights; just be quiet about that "marriage" thing.

You see, there are all sorts of people who, if you pin them down, believe that gays should have the same rights as heteros. But the word "marriage" freaks them out a bit. Even though we are talking about the legal civil aspects of "marriage", in many people's minds, you cannot separate the legal aspects of marriage from the religious aspects of marriage. To a lot of people the civil and religious aspects of marriage are completely muddled and intertwined. Some of the same people who think gays should have equal rights are afraid that if gays are allowed to marry, that the state will be forcing churches to perform gay weddings against their will.

So if we can keep people focused on the "rights" issues, and avoid the religious freak out, then I think we can get there.

So we add a few new rights every year. After a few years, more people will get the message that it's about rights, not religion. Eventually we'll get there. I think if you try to force it now, they'll just say no. It doesn't have the public support. Yet.

Posted by SDA in SEA | January 11, 2007 3:31 PM

I just listened back to the tape... and weirdly, that is what Pedersen said. Obviously, it isn't what he meant.

Posted by Josh Feit | January 11, 2007 3:43 PM


The current CA domestic partnership law was built incrementally; it's only in the last few years that it's become close to marriage. They are following exactly the model that CA pioneered.

Posted by annie | January 11, 2007 3:58 PM

I think it's a great strategy. According to an AP story, the Senate majority leader from Spokane says that she will be a co-sponsor with Murray of the Senate bill and that she thinks it will pass.

It was especially wise to include unmarried senior hetero couples in the partnership bill since they helped defeat the anti-marriage bill in Arizona in November and they also suffer from lack of visitation rights.

And it's even better that Murray and Pedersen are using the partnership bill as a way of showing how inadequate the partnership bill is.

And will they stick with it? Surely, Murray's history with the rights law shows that he's not about to give up.

Posted by Robin | January 11, 2007 4:10 PM

But California's model has one massive problem: by forcing same-sex domestic partner couples into the same community property scheme that opposite-sex married couples are in, CA opens SSDP couples to massive taxation due to DOMA.

It's a long story and I made a C in Federal Taxation so I'm not going to explain it well.
CA married couples get to file jointly with the federal government, so they pay whatever tax rate applies on their combined income. SSDP couples, because DOMA commands that they not be treated as married for any purpose by the federal government, are forced to have a pooled community property in CA that then is taxed on each partner's federal tax return. The IRS has said that domestic partners cannot just each be taxed on half of the community property (as married Californians have been even before the income-splitting joint return).

I'm too liberal to think paying more taxes is the worst thing that can happen to you, but I urge caution on those who see California as the perfect model.

Posted by PG | January 11, 2007 5:00 PM

PG: that is very interesting. I would think there would be some legal problems with that under equal protection and simply that it is taxing income twice. Do you know if the issue has been litigated or is this just an agency rule?

If it hasn't been litigated I would not expect it to hold up. It is manifestly unfair to especially tax the same income twice when no transfer has occurred. It wood be tantamount to giving a piece of property to ten people and having each of them pay taxes on the whole value. In many cases that would eclipse the value of the property.

I would hope that WA would find a way around this as you could be talking about tens of thousands of dollars.

Posted by Giffy | January 11, 2007 5:33 PM

There are some issues at the federal level; there have been a couple of private letter rulings by the IRS with regards to this. Besides those of you that think that double taxation doesn't occur (or shouldn't occur) are misinformed- everybody that pays tax on dividends issued by a C Corporation is double taxed on that amount (the corporation pays tax on the income, and then you pay tax on that part of the income that's issued as a dividend)...

The bigger point is that there are some instances where it is beneficial to be treated separately.

Posted by Dave Coffman | January 11, 2007 7:53 PM


Of course double taxation occurs, its the same money after all. However this is markedly different. It is income tax being levied twice on the same poll of money. Generally in order for tax to be levied twice on the same money (property taxes aside) that money needs to be transfered or used.

Either DP's are an economic unit and thus have joint income which should be taxed at the appropriate level, or they are not and each partner should be taxed on their separate income. It cannot be both ways. You can not at least from what I have seen (Poe decision comes to mind) treat community property as separate in the totality. It defies the vary nature of an income tax and what community property is.

It is really no different then if I were to form a partner ship for real estate investment. When we sell piece of property the partnership pays capital gains tax on the proceeds. This rule would essentially say that each partner should pay capital gains on the entirety of the profits. If you had more then about 4 or 5 partners you could never make a profit that survived the tax.

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