Wednesday, August 17, 2005

Should Domestic Partners be Handicapped?

The nation is at a cultural and ethical crossroads (again).  Multiple states are struggling with the question of “same sex marriage”.  Courts have shown a readiness to uphold these marriages as rights of equal protection of the laws under various state constitutions.  The idea is that marriage partners should not be denied the equal protection of the laws on the basis of gender.  

This conclusion has a hollow ring to it, I believe, because a society can legitimately define “marriage” as a unique relation having a gender based purpose:  the procreation and nurturing of children by the influence of male and female personalities.  While it may be politically incorrect, I think kids need a dad and a mom because each brings a type of nurturing and guidance that is gender influenced.  Both parents are needed to raise healthy, well-adjusted kids.  (Of course, anyone can cite numerous failed examples, but the idea is not to encourage the exception, but to advance the general principle for the best overall outcome).  

An adage of consequence is that “the law teaches”.  That is, people conclude that a behavior is acceptable because the law says it is.  The truth of course is that the law may permit an act that is ethically wrong.  Therefore, bad laws teach bad lessons, and encourage, at least indirectly, bad behavior.  Everyone suffers.  

Our California Supreme Court recently has acted as an ethical and philosophical arbiter on the question of marriage rights and obligations. Yes, the decision is of course a legal one, but one having obvious and profound impact on how persons will be “taught by the law” to view the morality of active homosexuality.   The Court was required to decide the enforceability of California’s Domestic Partner Act of 2003, which prohibits businesses from treating “registered domestic partners” (in this case Lesbians) differently than married couples.  

Basically, the case was brought by a Lesbian golf club member against the Golf Club because the Club denied her “domestic partner” free unlimited rounds of golf it granted by contract to the spouses of heterosexual married members.  The case was based on gender and “marital status” discrimination.  

The trial court had granted summary judgment for the Golf Club.  The Court of Appeal held that the particular form of marital status discrimination was legal, but ruled that there was a question of fact of whether the policy was enforced even-handedly (for example, were heterosexual “live-ins” given the privileges of heterosexual marriage partners?).  The Supreme Court hit the long ball.  It interpreted the 1959 Unruh Civil Rights Act (prohibiting discrimination by businesses on the basis of gender) together with the new 2003 Domestic Partners Rights Act.  Read together, the Court held, the Clubs practice was “marital status” discrimination.  Here’s the Court’s holding:  for purposes of the Unruh Civil Rights Act, a “domestic partner” is the equivalent of a “spouse”.    

The Case:  Koebke v. Bernardo Heights Country Club, 2005 DJDAR 9214 (Cal. Aug. 1, 2005).  

So, where do you “weigh in” on the question of “domestic partnerships”?  Did the 2003 “Domestic Partner Rights Act” snub the will of the electorate  who years earlier defined marriage to be exclusively between “one man and one woman”.  (Referendum of 1970s)?  Has the Court taught the “wrong lesson” or the “right lesson” by this decision?  Has this decision made it more likely the Court will uphold as constitutional the eventual enactment by our state legislature of a law that grants the title of “marriage” to same sex couples?  {The 2003 Act virtually grants all the legal privileges and benefits of marriage to homosexual domestic partners granted to “married” people}.

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