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.

8 thoughts on “Prop 8 #1: A Material or Moral Defeat?

  1. Couple of areas that may reveal an inconvenient distinction between the semantics of “married spouses” and “domestic partner” probably involve practical application… I can see a gay person trying to visit their mate in the hospital, or possibly needing to make a medical decision on their behalf, being given the damn run-around by some ignorant, homo-intolerant desk-jockey because they are “not legally married,” and hospital policy dictates that “only family members” are eligible to engage such action.

    It won’t matter much, at the time, that legally said hospital official may be wrong. Just think of the inconvenience, potentially critical waste of time, and the friggin’ insult to the distressed loved one that would occur. Who wants to put up with such nonsense?… And why should they have to?

    Also, think of all the little fringe perks given out to “married” people from businesses, organizations, private clubs, etc… Who wants to engage and wade through all the so very unnecessary legal wrangling and BS to avail themselves of such services when if the right thing was done from jumpstreet — the legal recognition of gay marriage — none of all this time-consuming, finance-draining, personally irritating, legal nonsense would need to happen.

    This is what makes the semantics game so relevant with this issue.

  2. Frankly, hearing white gay people respond to this issue just reminds me how white they are (or want to be). Yes, this is an equality issue, but a whole bunch of us are being silent (or just blatantly dishonest) about the role that class plays in marriage.

    And if I hear one more gay person question their support for Barack Obama (as if there was no other reason to vote for him and/or they were doing someone else a favor) in one breath and in the next breath claim that “Gay is the new Black.” because of this … honey, it’s really not going to be cute. At all.

  3. T.Evans – i think your point about hospital visitations and practical applications is a good one. i’m not sure about fringe perks, but i’m thinking that state (and voter) support for gay marriage could give local school districts more leverage when including discussions of sexual orientation in their sex ed lessons (just what the Right feared). that sort of thing has played out in MA too, though i also think there are plenty of other ways to accomplish these things.

    but in thinking about these as “civil rights” it just highlights for me all the perhaps more critical rights that queers are not afforded by gay marriage; like the right to apply for and keep your job regardless of sexual orientation or gender identity/expression or the right to be free from violence because of what you look like.

  4. Yes Congrats, Kenyon on the OUT 100 recognition.

    I can’t tell you how much I have thirsted for intelligent, well thought out dialogue such as what you have provided. I’ve had issues with the “marriage equality” scene since it was hot in ’04, and basically there’s just a lot of leadership that operates in a very reactionary way, and a lot of their tactics just fall flat.

  5. What you have highlighted is interesting. To be fair, I think this is a moral battle with material casualties. Those “casualties” are people’s minds.

    Whether or not the “Pro-Family”/”Anti-gay” crowd has actually won anything is irrelevant. The fact that so many people could come forward in protest against gay marriage, and gays, is troubling. This action is a type of barometer for “opinion”, if you will. It’s telling us public opinion of an entire group of people is poor. It’s telling us that the public has invalidated, and belittled, the lives of so many Americans.

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