Proposition 8 opponents, all major media outlets, and even the official California state ballot title and description all state that the amendment bans same-sex marriage. Nearly everyone, including most people reading this post, agree. I feel compelled to point out that Proposition 8 does no such thing.
Don’t believe me? Read the text of the amendment (emphasis mine): “Only marriage between a man and a woman is valid or recognized in California.” Proposition 8 restricts legal recognition of marriage to that between one man and one woman. The government will provide neither recognition of nor benefits and obligations to same-sex marriages. By contrast, any individuals and groups are free to provide such considerations.
(I note that the amendment doesn’t single out same-sex unions, as the ballot description imposed by the state attorney general misleadingly claimed. It also codifies in the constitution a ban on recognition of polygamous relationships and those involving non-humans. And state law already declares incestuous marriages void.)
Any couple remains free to “enter into marriage”, “exchange nuptials”, “unite in holy matrimony”, “begin a domestic partnership”, or engage in any other ceremony celebrating their union. Same-sex couples may call their relationships “marriages” and refer to each other as “husband” or “wife,” if they so choose. The amendment in no way prohibits a religious official from conducting a same-sex ceremony. Nor does Proposition 8 prevent families, religious groups, businesses, and other groups from recognizing same-sex relationships and granting benefits to same-sex couples.
Moreover Proposition 8 does not prevent state lawmakers from providing to same-sex couples the same rights and obligations as are provided to legally married couples. State law currently provides similar coverage for registered domestic partnerships as it does to marriages.
It’s true that the federal government doesn’t recognize domestic partnerships. But federal authorities won’t recognize same-sex marriages enacted between June 15th and November 4th either. Same-sex couples would be denied federal benefits with or without Proposition 8. No California amendment can change federal law.
It’s also true that other states recognize California marriages, but may not recognize domestic partnerships. But in this case, too, most states reject same-sex marriages (such as those performed in Massachusetts.) No California law can force other states to recognize same-sex unions regardless of what they are called.
Whether the state of California should limit its recognition of marriage to that between one man and one woman is a subject for another post.