The Jury Talks Back

12/2/2008

Proposition 8 Does Not Ban Same-sex Marriage

Filed under: California Politics — aunursa @ 10:36 pm

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.

20 Comments

  1. So, if the state lawmakers wanted to, they could offer marriage-style benefits to “same-sex domestic partners who are also married in the eyes of some religious order” without violating Prop 8?

    Comment by Kevin Murphy — 12/2/2008 @ 11:43 pm

  2. Good point, aunursa. Very good point.

    Comment by Amphipolis — 12/3/2008 @ 5:32 am

  3. Comment by Kevin Murphy — 12/2/2008 @ 11:43 pm

    Sounds like it.

    Comment by Scott Jacobs — 12/3/2008 @ 6:06 am

  4. Kevin/1:

    Unlikely, if they were restrictive to religious people.

    On the main topic, I think we all understood this was state action. State law already banned polygamy and did not allow marriage to non-humans; both of those seem non-parallel to gay marriage. State statutory law banned same-sex marriage, but that was judicially overturned.

    The section itself says it’s invalid. I’d think saying one was married in a situation where one got some benefits from that would be fraudulent.

    You can hold yourself out as husband and wife as common-law marrieds in California – but you’re not married in the eyes of the law; California does not have common-law marriage. And the law is what counts to most people, no?

    We don’t recognize people as married who don’t get their license, even if “married” in some ceremony.

    Where does it stop? If I tell my wife that the prostitutes have married me in a ceremony in the motel room, whether or not the law recognizes it, I just don’t think it will go well.

    –JRM

    Comment by JRM — 12/3/2008 @ 7:22 am

  5. and did not allow marriage to non-human

    So Speaker Pelosi’s marriage isn’t legal?

    Sorry… Couldn’t resist…

    Comment by Scott Jacobs — 12/3/2008 @ 7:31 am

  6. If I tell my wife that the prostitutes have married me in a ceremony in the motel room, whether or not the law recognizes it, I just don’t think it will go well.

    True, though it is pretty likely the REASON it wouldn’t go well has little to nothing to do with the marriage portion of the evening…

    Comment by Scott Jacobs — 12/3/2008 @ 7:32 am

  7. JRM–

    Well, “religious order” could be damn near anything, including people who worship plankton, or the Flying Spaghetti Monster, or the Church of Bob.

    Comment by Kevin Murphy — 12/3/2008 @ 8:37 am

  8. Just to give you an idea on how upset the gay community is – my wife and I went to the REI store in downtown Portland, OR. Outside the store was a young man with a petition for “Overturning Proposition 8″…I thought that to overturn a proposition in CA, you needed to collect signatures from voters in CA?

    And how are their civil rights have been taken away from them in comparison to Blacks prior to the Civil Rights marches of the 50’s and 60’s? I haven’t seen any “Gay Only” lunch counters, water fountains or bathrooms, have you?

    Comment by fmfnavydoc — 12/3/2008 @ 9:47 am

  9. Do gay marriages outnumber automobile fatalities yet? What an issue for “conservatives” to get their panties in a wad about.

    Comment by nk — 12/3/2008 @ 9:58 am

  10. But what the hell? Let’s keep doing it while our labor base is illegal aliens, our manufacturing capacity is now in China, and we’re buying food with our credit cards.

    Comment by nk — 12/3/2008 @ 10:03 am

  11. Kevin: I think the existing DP law does that without saying anything about religious orders.

    I think the state could constitutionally do either of the following:

    * confer upon religious officials the authority to solemnize a domestic partnership;
    * automatically recognize out of state same-sex marriages as domestic partnerships under California law

    Comment by aphrael — 12/3/2008 @ 11:46 am

  12. Aunursa: what you say is indisputably true. I am married to my husband, whether the state says ‘yea’ or ‘nay'; and that marriage is recognized as such by my friends, family, and community.

    The state has no power to say I am not married; it merely has the power to say it will not recognize my marriage.

    Comment by aphrael — 12/3/2008 @ 11:48 am

  13. nk: But what the hell? Let’s keep doing itwhile our labor base is illegal aliens, our manufacturing capacity is now in China, and we’re buying food with our credit cards.

    The same could be said of SSM supporters. Why are they getting all bent out of shape over this minor issue (as you seem to imply) when there are much more important concerns facing our state and nation.

    In fact, it would apply even moreso to SSM supporters. When the court ruled for SSM back in May, I don’t recall seeing any SSM opponents attack SSM supporters, try to shut down businesses, post the names of Anti Prop 8 contributors online, and in other ways harass and intimidate SSM supporters for engaging in free speech and the political process.

    Comment by aunursa — 12/3/2008 @ 12:16 pm

  14. aphrael: The state has no power to say I am not married; it merely has the power to say it will not recognize my marriage.

    On that point we are in agreement.

    Comment by aunursa — 12/3/2008 @ 12:18 pm

  15. JRM: Same-sex couples can call themselves married for purposes that do not involve legal benefits and obligations. Couples can register as domestic partners for purposes that do involve legal benefits and obligations.

    State law already banned polygamy and did not allow marriage to non-humans; both of those seem non-parallel to gay marriage.

    A later court could decide to overturn those prohibitions — especially polygamy. In that way, it’s comparable to SSM.

    Comment by aunursa — 12/3/2008 @ 12:25 pm

  16. Aunursa: it’s difficult for me to see the line connecting the court decision in the marriage cases, which depended on sexual orientation being a suspect class, to polygamy.

    The distinction between same sex and opposite sex marriage had could only be sustained if it were narrowly tailored to meet a compelling state interest, because sexual orientation is a suspect class for equal protection purposes.

    But unless you can conjure a suspect class out of polygamists, which seems like it would be difficult to do, the distinction between two-person and multiple-person marriage would be sustained as long as the state could demonstrate a rational basis for it.

    I think it would be next to impossible for a court to rule against the state in such a case.

    Comment by aphrael — 12/3/2008 @ 12:31 pm

  17. aphrael: (1) Are you suggesting that a court could not consider bisexuals a suspect class?

    (2) You’re assuming that justices invariable look at the facts and the law, and then rule accordingly. You’re failing to consider the possibility that in some cases, justices initially make a ruling, and then fashion a legal basis to support it.

    Comment by aunursa — 12/3/2008 @ 12:39 pm

  18. Aunursa: I suppose that bisexuals could be considered a suspect class, although i’m not sure how that relates to polygamy.

    Comment by aphrael — 12/3/2008 @ 1:51 pm

  19. Bisexual multi-partner unions could argue that restricting marriage to just two people unfairly prevents them from marrying the people they love.

    If you don’t think that a movement to legalize polygamy is soon to follow, then it’s time to start paying attention.

    Comment by aunursa — 12/3/2008 @ 7:02 pm

  20. I have no doubt there is a political movement to legalize polygamy. I think it’s unlikeful to meet with the judicial success gay marriage has, because the case is much harder to make.

    Comment by aphrael — 12/3/2008 @ 7:10 pm

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