Is this an issue of rights?
Since 1999, same-sex couples have been able to register for a domestic partnership under California law. Though rights were limited in scope back then, these have been expanded over the years so that today, a domestic partnership offers the same rights and responsibilities as a marriage within California.
From the California family code (current California law) regarding domestic partnerships:
297.5. (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, 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.
(f) Registered domestic partners shall have the same rights regarding nondiscrimination as those provided to spouses.
(These are two portions of the law that offer summary statements; click the link above to read the full text of the law.)
If Proposition 8 becomes law, it would not affect California law on domestic partnership—same-sex couples could continue registering and receiving the same rights in California as married opposite-sex couples.
Do “marriage” and “domestic partnerships” confer the same rights?
Within California, both confer the same rights. However, these rights are not “portable” because states create their own state’s laws, not federal ones. Thus, same-sex couples can’t register for a domestic partnership in California and retain those rights and responsibilities if they move to another state, unless that other state passes legislation to acknowledge these unions.
The same is true for same-sex marriages. Individual states decide whether they will recognize same-sex marriages. So as far as portability goes, it doesn’t matter what designation a same-sex couple receives (marriage or domestic partnership)—other states may or may not recognize the union. Same-sex marriages are currently recognized in Connecticut, Massachusetts, California and New York; New Hampshire and New Jersey recognize these as civil unions.
The U.S. federal government and its agencies do not recognize same-sex marriages, per the Defense of Marriage Act (enacted 1996).
If rights aren’t at stake, then what’s this issue about?
This is a primarily a dispute over the right to use the word “marriage.” From a publication of the Gay & Lesbian Advocates & Defenders (GLAD) website: “Civil unions are unfamiliar; people don’t understand them or know how to treat them … . Marriage is the ultimate expression of love and commitment; people understand and respect it.”
Why is any compromise needed? Why not just designate both as “married”?
For a variety of reasons, many Americans, including Californians, think the word “marriage” should be only defined as between a man and a woman.
In 2000, Proposition 22 was adopted in California, with 61 percent of voters supporting it. The following was added to the California Family Code (308.5):
Only marriage between a man and a woman is valid or recognized in California.
A series of legal challenges and counter-challenges has taken place over the past four years. In May 2008, the California Supreme Court struck down Proposition 22, effectively allowing same-sex couples to marry. In June 2008, Proposition 8, titled “Eliminates Right of Same-Sex Couples to Marry,” qualified for the November ballot, receiving close to twice the amount of petition signatures required for a measure to qualify.
Same-sex couples have been able—and are still able— to register for domestic partnerships. If Proposition 8 becomes law, it would not affect California law on domestic partnership—same-sex couples could continue registering and receiving the same rights in California as married opposite-sex couples.