Prop 8 #1: A Material or Moral Defeat?
I know I am late on this one, but initially I thought that my essay from 2004, Is Gay Marriage Anti-Black, would be enough to help people think about the racial dimensions of the same-sex marriage debate. I can tell it’s getting alot of traction again, people have emailed to say it is circulating on listservs and it’s in the top 10 blog entries here for the last week. Sometimes, it’s better to be late than to be quick and not comprehensive. I think there are lots of things to say about this particular situation, so I am going to be blogging on this all week with short blog entries, while I work on a longer analytical piece. But I will use this series to talk about some of the flawed assumptions of the people upset about the ban.
One of the things that has been bugging me is the pro-marriage (and marriage ONLY) gays and straights have been talking as though this were the same thing as the Dred Scott decision–a total loss of rights tantamount to second class citizenship, or no citizenship at all. But is this true? Though it is a setback, in terms of cementing heterosexist law on yet another state in the union, is it really the loss of “rights” as is being framed by the advocates?
Something to consider: California already has a domestic partnership law on the books, that was signed into law in 2003, and took effect in 2005. According to the California domestic partnership law, “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the sameresponsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”
In essence, the benefits of domestic partnership are very similar to those given under civil marriage, which are pretty similar to straight married couples, with the exception of federal recognition to get the different benefits under federal law. The US government does NOT currently honor state marriages of gay couples.
Did the California Supreme Court decision which lead to default legal marriage for same-sex couples, end the domestic partner benefits already afforded under the 2003 law?
NO. According to the state website, “The Court’s decision regarding same-sex marriages did not invalidate or change any of the Family Code statutes relating to registered domestic partners. Until a Notice of Termination is filed with our office, a registered domestic partnership will remain active on California’s Domestic Partnership Registry. This office will continue to process Declarations of Domestic Partnership, Notices of Termination of Domestic Partnership and other related filings as permitted by the domestic partnership law.”
That would mean that same-sex couples could still get the domestic partnership benefits, even though there is now a ban on marriage, per se. Is there a qualitative difference between domestic partner benefits and marriage, if neither are recognized federally? I think not.
So I don’t think that the idea that gays in California somehow lost some substantive rights (though I don’t support the ban, obviously) in the few months where they were allowed to get a slightly differently worded piece of paper, makes not a whole lot of sense. This to me is more a moral debate than it is a material one, but I will get into that issue when I write a full piece…Stay Tuned.
Read American University Professor Nancy Polikoff’s Blog to keep up with the best legal mind on these issues.