Academic

The California Anti Gay Marriage Referendum--Skeel

By David Skeel and Bill Stuntz

Reading the daily updates on the prospects of the California Anti-Gay Marriage referendum, I find myself quite conflicted. Like the two presidential candidates, I am not in favor of gay marriage, but I have long been troubled by the tenor of the campaigns to stop gay marriage (and even more about the campaigns against gay rights generally), which have often seemed unloving, to put it charitably. Two thoughts on the gay marriage issue.

First, gay marriage strikes me as a much better issue to leave to the states than abortion, the other hot button issue on which it is often proposed. If states had varying laws on gay marriage and other family law issues, as they currently do, people could make their decisions where to live based in part on a given state's rules on these issues if the issues are particularly important to them. To be sure, this approach would only work if a state's marriage or partnership rules were limited to that state and states that chose to recognize them. This raises some tricky constitutional issues, but my impression (subject to correction by those who are more expert in constitutional law that I am), is that any constitutional impediments are not insurmountable and that it's essentially what we have now.

This leads to the second thought. What if the new president proposed "minimum standards" legislation on the gay partnership and marriage issues?

Under this approach, which I borrow from the scholarly literature in corporate law, Congress would pass legislation establishing a minimum level of protections for gay couples (and perhaps others) for things like hospital visitations, inheritance and the like. Beyond this, states could make their own decisions whether to enact gay marriage, domestic partnership legislation, or neither. Minimum standards legislation would provide consistent rules for issues on which there appears to be substantial support, while allowing each state to resolve the most contested issues about marriage and the subsidization of non-marital relationships.

Full post as published by Less than the Least on October 26, 2008 (boomark / email).