Personally, I think gay marriage is a tempest in the teapot.  Let two people do whatever they want with each other.  It’s none of my business, and it’s none of yours either.  Does it freak you out?  Who cares.  It’s their life, not yours.  And that’s that.

But since the California Supremes held that their gay marriage ban violates the state Constitution, it seems like a good time to bring up another issue that people haven’t really spent enough time considering.  New York, like most states, does not permit same-sex marriage.  Nor does it recognize marriages from Canada or civil unions from Vermont.  Yup, we are one progressive state.

As a result, however, a body of law is developing around issues of property and child custody in order to circumvent legislative inertia.  Don’t mistake this as a diatribe against activist judges.  Rather, this ad hoc law-making, extending the reach of domestic relations law on a case by case basis, is in the process of creating a Frankenstein monster.

The problem is that decisions, well-intended and well-reasoned, that try to expand the reach of traditional domestic relations concepts to cover the situations that typically arise, but now within same-sex relationships, are not being vetted against the potential impact on the future of the law for everyone, gay or not.  While it may produce an admirable result today, it has the potential to produce nightmarish results in the future.  But because of the constraints placed on courts by the State’s refusal to permit or recognize gay marriage, judges are trying their best to address the issues but feel like their hands are tied.

Nothing against judges, but when they engage in expansive revision of clear, long-held legal concepts, they are really venturing into an area where the courts don’t belong.  Judges are not very good at reflecting the will of the people when they advance a political agenda, and no judge should decide without considering how that decision will affect the future state of the law. 

Right now, the law of the State of New York is in such flux, such disarray, that it’s impossible for same-sex couples to know how to behave, how to relate to one another, how to deal with the issues that typically arise in relationships.  The law may say one thing today, but no one has a clue what the law will be tomorrow.  It makes it rather hard to guide yourself accordingly, when there is no accepted law to follow. 

All of this arises because of the State’s refusal to allow same-sex marriage.  If gays could marry in New York, we could go back the same old law that has served us well for the past 100 years.  You want to prove that you have a relationship that the law should recognize and that will give you the rights of a married couple?  Then get married.  If you don’t get married, then you will not be treated as if you were married.

Now, equitable estoppel is in vogue.  The concept has merit under the circumstances, but it lacks any bright line test to tell people where to stop if they want to stay out of trouble.  It would force gay couples into defensive postures just to make sure that they don’t say or do something which, under next week’s version of the law, will come back to change the nature of every choice they made.  This is no way to live.

Everyone needs law they can rely on to guide them.  Gays and straights need to know where the line is, so they can willingly decide to cross it.  If the lines gets moved every week, we all suffer.  And when the State finally gets it’s collective head out of its collective butt and allows same-sex marriage, we will be stuck holding the bag on a lot of court decisions designed to circumvent the problem, but which will leave us with massive confusion as to whether we guide ourselves by the front door law or the back.

We all know that we’re going to end up with gay marriage across America eventually.  Even the religious zealots will eventually toss in the towel when the learn that their favorite TV high priest likes to go down low after a hot and sweaty sermon.  So let’s do it sooner rather than later, before we end up with a domestic relations jurisprudence that will cause misery amongst families and children for decades to come.  Do it for the children.