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Yes, Virginia, gay marriage is legal in all 50 states*

Posted by B. Daniel Blatt at 3:09 am - July 8, 2010.
Filed under: Gay Marriage

They accost you when you’re leaving the grocery store when you’re really not in the mood to deal with politics and have, I’m told, accosted citizens minding their own business in other public spaces.  Most seem to be kids in (or just out of) college.  And despite their education, they remain clueless about the meaning of the word, “legal.”

I do believe they mean well, but somehow in coming out of the closet, they join the gay organization on their college campus where they are often taught that activism is part of being gay.  Unless they engage in some kind of political activity (almost always for a left-wing organization like the folks in California laboring for the state Democratic Party front group, “Equality California” (EqCA)), they’re deemed selfish or self-hating.  (Hopefully, more on this expectation of activism in a subsequent post.)

I’m not entirely sure why EqCA has engaged these young folks to press for the legalization of something that is already legal — gay marriage –but they do seem to frequent grocery stores (and shopping malls) frequented by our Angeleno readers.

Now, you may say, as do many of our critics, that, well, didn’t the citizens of California vote to ban gay marriage when they passed Proposition 8?

And I will tell you that in fact they didn’t.  Prop 8 had nothing to do with making gay marriage illegal.  It had everything to do with what type of unions the state recognizes as “marriage.”

Let me build on my answer with a question:   in the 19 months since Prop 8 passed, can you name one person who has been arrested or otherwise punished by authorities from the State of California for getting married?

You may reply, well, but, you see, the state doesn’t recognize same-sex unions as marriage even if the partners involved call themselves married.  Still, the fact that we can call our unions “marriage” and to have religious institutions perform them means we are free to get married.  Now, you may contend as did one of our readers that:

Under the law, if you do not have a marriage license, you are not married. You are legal strangers. W/o that license, you must create special contracts and legal arrangements (a costly process) to get some of the benefits of that legal institution. And you still won’t get all of those benefits.

And he is right as go most of the states, but not for California.  Here, the state recognizes same-sex unions as domestic partnerships and confers on them all the benefits of marriage, save those granted by the federal government (which it lacks the authority to grant).

Given that these energetic young folk are in (have come to?) California, it’s important to understand what Prop 8 did.  Let’s recall first that advocates of that ballot measure were often at pains to say that same-sex couples still had domestic partnerships. Even they did not seek to take away those benefits (though I would daresay some of their fellow Prop 8 voters like to).  Not just that, in upholding Prop. 8, the California Supreme Court made clear that its ruling did not affect state recognition of those partnerships.

Thus, not only is it legal for gay people to get married in California, but while the state won’t call their unions marriage, it still confers a great number of benefits on the partners.

Now, you ask, why am I at great pains to make a point about semantics.  It is because, I believe it is a distinction with a difference.  Yes, I realize most states don’t even recognize same-sex civil unions, which would accord benefits similar to or the same as marriage.  And I do think they should.  Unlike many gay activists, I’m not beholden to the word marriage — and am not unhappy with the system currently in place in California.  I do believe the federal government would recognize such unions, particularly for awarding Social Security survivorship benefits and for facilitating citizenship requests of same-sex foreign partners of American citizens.

That said, I think the distinction matters because we need to understand what we’re fighting for and how far we’ve come.  We can increasingly live openly as gay people.  The state does not arrest gay people for getting married.  (Recall that the Lovings (of Loving v. Virginia) had three choices, get divorced, leave Virginia or go to jail.)

We are not victims, as some advocates of same-sex marriage suggest (and which the expression “legalization of gay marriage” implies).  Those advocates are pushing for a serious social change.  They are asking for the state to treat same-sex unions as it does different-sex unions and confer upon them a status, a marriage recognized by the state, long reserved for such different-sex unions.

Instead of whining like victims, make the case why our unions should be privileged as are different-sex unions.  But, I’ve said this before, more times than I can count, so let me repeat it once again:  advocates of state recognition of gay marriage are not fighting for the legalization of an institution, but seeking to have the state privilege certain same-sex unions as it now privileges different-sex ones.  So, we need to make a positive case for why our unions merit such privilege.

Let me repeat, his is not about rights, it’s about privileges. If it were about rights, there would be no issue.

Perhaps, I’m repeating myself a bit here, it’s late, I’m tired, but this topic was on my mind today.  And it does seem all the really important stuff is below the “jump.”


*It’s just that the states don’t recognize those unions as marriage nor, in most of those states, confer on them the benefits it offers to individuals in different-sex unions who elect to call their unions marriage.



  1. to claim that a person is only valid if they are able to procreate is kinda silly.

    Not nearly as silly as claiming a person is only valid if the government recognizes their chosen sexual union.

    NDT you really dishoner many of the commenters here for they are actually gay or lesbian parents.

    I think they can speak for themselves, thank you. But I will go out and point out that V the K is a parent and freely admits that, while he is a good parent and is far better than nothing, that he cannot match a married, committed mother and father.

    you also dishoner many of those folk who have fertility issues with your ‘logic’

    How so? I have no problem with them getting married. You’re the one who petulantly is throwing tantrums insisting that if you can’t marry your sex partners, it’s unfair to allow them to get married.

    Comment by North Dallas Thirty — July 10, 2010 @ 2:49 am - July 10, 2010

  2. And just for the record NDT, if I met you in person, I would walk up to you and offer you a hug, if you were up to it. I find your views, a little hard to handle, but I also find you intriquing. Ciao

    Comment by rusty — July 10, 2010 @ 2:50 am - July 10, 2010

  3. didn’t realize V the K was ‘family’ THANKS

    Comment by rusty — July 10, 2010 @ 10:32 am - July 10, 2010

  4. united states v. Carolene products. it says clearly that different degrees of scrutiny must be imposed if there is an history of legal discrimination for the minority or not. we see that in fact a desire of criminalize us is patent in part of usa. this is proved by the gop party platforms in texas,idaho and montana.Probably a minority of republicans have this positions,but the majority thinks that the party can have this official position without backlash. So our theoretical destruction is considered an acceptable end to the major texan party.i don’t think that the time is ready for an attack to the state-amendments,but they are doomed because their foundament is not understandable in a country that respects lgbt people and has on the books an equal protection amendment. i have given an answer on same-sex marriage in previous posts that show that the usual maggie gallagher position about reproduction is without bases.A very simple upper limit at 58 for women could make marriage laws consistent with their suppose reproductive-only end.the state could spare precious funds. Instead 15 and an half years children can not be separated in mature and not mature in an objective,simple way. the present situation is only the dross of an abysmal past,with lobotomies,pain and bereavement.Our enemies like this horrible past;they never recognize what we suffered

    Comment by volpi — July 10, 2010 @ 2:49 pm - July 10, 2010

  5. How so? I have no problem with them getting married. You’re the one who petulantly is throwing tantrums insisting that if you can’t marry your sex partners, it’s unfair to allow them to get married.

    NDT, this is the part of the argument I don’t get. Your argument is that 0% of gay couples can procreate. Agreed. As such, you believe they should not be given the privilege of marriage. Fine. However, 0% of opposite sex couples in which one or both are infertile can procreate. Yet you have no problem with these couples getting married.

    My take is Rusty is not trying to prevent infertile couples from getting married. Not at all. And you’re not either, unless they are the same sex.

    Comment by Pat — July 12, 2010 @ 8:43 am - July 12, 2010

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