The New 'I Do'

Even if novel claims to marriage based on the same-sex marriage decision die in the courts, gay marriage opponents could use them as political fodder. And that's hardly the only political problem that might arise. In three separate sections of its 121 pages, the decision raises the possibility that, to achieve equality for same-sex couples, the state might eliminate the term "marriage" altogether. The decision doesn't endorse such a remedy, but it doesn't rule it out, either.

The elimination of "marriage" is unlikely, even in California. But at least some people here seem to think that no marriages are better than same-sex marriages. Clerks in two California counties have announced that they'll stop performing wedding ceremonies this week for any couples, gay or straight. (They'll still have to hand out licenses.) Just imagine the backlash if the push to recognize same-sex couples turned marriage into a merely religious rite (and right).

These tangles will seem academic to gay couples, who have waited years for simple freedoms. It shouldn't matter that California politics and controversial social policy make for, well, a rocky marriage. But it is a strategic problem. And gay rights advocates would be wise to remember that, with all the political and legal risks involved, the practical advantages of legalizing same-sex marriage in California are underwhelming.

Gay couples who upgrade their status from domestic partners to married spouses will win only a handful of new benefits, and many aren't worth all that much. In California, married couples may live apart, while domestic partners have to reside in the same home. Married couples also have a little-known right to "confidential marriage," meaning that the marriage certificate and the date of the marriage aren't part of the public record. (The reasons for this provision are another California story altogether.) Domestic partnerships, on the other hand, are public. When it comes to divorce, though, married spouses are actually at a disadvantage -- they must have a legal residence in the state and must seek a court judgment; divorcing domestic partners don't need either.

Gay couples who get married this week will gain these new rights and responsibilities, but they still won't have all the same freedoms as heterosexual married couples in California. That's because federal law provides legal recognition only to marriages between a man and a woman. So when it comes to spousal benefits related to federal income taxes, Social Security, federal housing, food stamps and military and veterans' programs, same-sex married couples remain unmarried in Uncle Sam's eyes.

If there's ever going to be true marriage equality in California, the fight that counts most won't take place in Sacramento. For that fight, the battleground is Washington.

mathews@newamerica.net

Joe Mathews, an Irvine senior fellow at the New America Foundation, is the author of "The People's Machine: Arnold Schwarzenegger and the Rise of Blockbuster Democracy."