Sunday, November 02, 2008

Is Prop. 8 About Rights?

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.


Anonymous said...

Hmmm...all sounds so very Plessy v. Ferguson, you know, "separate but equal"? A bit too segrationist for my minority mixed-race tastes, thanks. I'd suggest checking out Brown v. Board of Education. Basically separate but equal was knocked down by the Supreme Court...something about a conflict with the Fourteenth Amendment of the United States Constitution. I guess "separate but equal" just didn't sit too well with the high court. Go figure.

And, thank goodness for that Supreme Court, and our system of checks and balances, right? I mean, I'm pretty sure I served four years in the United States Marine Corps to uphold and protect the rights and liberties of ALL Americans, born or naturalized, NOT just those in the majority. After all, if everything was simply an issue of majority rules, women might not have the right to vote, blacks could still be considered "property", and Dale Earnhart, Jr., or maybe some Hollywood actor, might be sitting in the office at 1600 Pennsylvania Ave.

In all honesty, this issue won't be decided tomorrow, literally and figuratively. Regardless of how the vote goes on 8, it will undoubetdly continue to bounce around in the courts for years. Looking at how far we've come as a country in protecting the basic rights of the disenfranchised (and I'm not talking about speed limits here), I'm confindent though that liberty will once again prevail.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 1, 14th Amendment to the United States Constitution


"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

From the Declaration of Independence, July 4th 1776


"Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."

From Abraham Lincoln's Gettysburg Address, Nov. 19th 1863


"In a sense we've come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men - yes, black men as well as white men - would be ... Read Moreguaranteed the unalienable rights of life, liberty and the pursuit of happiness."

From Dr. Martin Luther King's "I Have A Dream" speech, Aug. 28th 1963

Holly said...

Mike, "separate but equal" is usually (and accurately) discussed as "separate and unequal." Facilities and services provided to African Americans and other people of color were inferior to those provided to whites. For example, many African-American schools received less funding per student than white schools.

In California, domestic partnerships have the exact same legal standing (rights and responsibilities) as marriage. The sole difference is the term used to define the union. There’s no issue of inequality of rights.

You could make an argument about the “separate and unequal” nature of federal law (Defense of Marriage Act). But it’s not applicable to Prop. 8.


Anonymous said...

regarding "separate but equal"

This issue is not the same as the civil rights issues to which it is so often compared. Gay rights activists love to compare their struggle to the struggle for interracial marriage, but it is not the same thing. There is no fundamental difference between a black man and a white man. There are great fundamental differences between men and women.

Defining the basic social unit in our culture as marriage between a man and a woman is better for our society.
We are not taking away anyone's rights. Marriage between anyone and everyone was never an inalienable right (you may not marry your sister, your father, or your dog... or someone under the age of 16 for that matter). No value system in history, whether Judeo-Christian or otherwise, has prohibited interracial marriage; but every value system has discouraged same-sex marriage. Even societies that enouraged and celebrated homosexuality, reserved marriage for male-female relationships.

Gays and lesbians have the right to live with and love whomever they choose. They are even free to marry, if they want to marry someone of the opposite sex. If they want to live with someone of the same sex, they have domestic partnerships.
The majority does not have the right to "force" its values on the minority; but neither does the minority have the right to force its values on the rest of us!

Anonymous said...

So, you're saying that Prop 8 is Separate but Equal, correct?

The problem therein lies in the fact that "Separate", whether equal or unequal, is inherantly unequal in the end.

Following the line of thinking that Domestic Partnership conveys the same rights as Marriage, and as such is completely equitable, then as long as the funding was the same for black students as white students, and as long as they both received the same level of services and facilities, then to segragate would still be ok?

No matter how you slice it, it's discrimination through segragation.

Domestic Partnership and Marriage is not the same. Otherwise we wouldn't be having this discussion, now would we?

And so, if it's not the same for all, then that is obviously a discriminatory practice, yes?

What if there was a proposition that would limit couples comprised of one naturalized citizen and one US born citizen to be able apply for Domestic Partnership but not become Married? Would something like that still be equal?

I'd vote against that propostion too.

Anonymous said...

Do you agree that society has a right to put any limits on marriage?

Can we say that a man may not marry his daughter (or his son)? Is it okay to deny brothers and sisters a marriage license if they really love eachother? Isn't it discriminatory to say that minors can't get married? What if a man loves two women, or two men? Can the three of them get married?

Marriage has a definition, which means it has limits. In our case, society is determining that definition and those limits. This proposition is about what those limits should be. Those in favor, are simply agreeing with what the definiton of marriage has been since the concept of marriage was first invented.

Marriage is defined as a union between a man and a woman. It does not matter if the man is black and the woman Asian. It does not matter if the woman is a naturalized citizen and the man is a US born citizen. As long as you have a man and a woman you have a marriage.

Issues of race and nationality are not the same as issues of gender. There is no fundamental difference between a black man and a native american man. A man is still a man whether he is Irish or Kenyan.
On the other hand, a man is not a woman, no matter what other perspective you take. And a woman is not a man. It is the differences coming togther and working together that makes up the fundamental unit of our society.It is also what makes the ideal environment for raising children.
In saying that it doesn't matter if marriage is male-female or male-male or female-female, you are saying that there is nothing that a father gives to a child that the child can't also get from a mother; and that there is nothing that a mother gives to a child that the child can't also get from a father. Psychology and sociology will disagree with you. A child does best with a mother and a father. And the reason is that men and women are different, fundamentally and qualitatively different.

Purple, by definition, is a mixture of red and blue. You may say that that discriminates against yellow; but if yellow mixed with red it would be, by definition, orange. You can't call it purple just to avoid being discriminatory.

Anonymous said...

On another note, I don't want grade-schoolers' sex-education classes to start teaching how men and men have sex or how women and women have sex, which is what would be required if this proposition passes, just as it is in Massachusettes.

Anonymous said...

Yo, Adrienne.

A few things...

1) If, according to you, this isn't a civil rights issue, then I need to know what exactly is your definition of Civil Rights?

Here's one from Websters:

Main Entry: civil rights
Function: noun plural
Date: 1658
: the nonpolitical rights of a citizen ; especially : the rights of personal liberty guaranteed to United States citizens by the 13th and 14th amendments to the Constitution and by acts of Congress

Therefore, I think it absolutely is a civil rights issue.

2) I had to chuckle at the idea of me being labeled a "Gay Rights Activist". But, hey, in this case, if the stiletto fits, I'll wear it. Really though, I'm more into the general notions of Freedom, Liberty and Equality...for all. You know, basic human rights.

3) You state:
Defining the basic social unit in our culture as marriage between a man and a woman is better for our society. We are not taking away anyone's rights.

I don't even know where to begin with this one that wouldn't get me in a lot of trouble...

Let's just say I couldn't disagree more and leave it at that.

Look, here's my bottom line...

Holly and I will never come to terms on this issue, as I don't believe you and I will either. Reason being is that Holly, and I assume you too, are looking at this issue strictly from a Christian-tinted perspective, wherein you are being true to your beliefs. I get it. I respect it. I just don't want to be governed by it.

The problem that I see in this issue actually goes to a previous example Holly gave of the "Domino effect". She spoke of what would happen next if Gays were to be allowed to marry. From a Christian perspective, this is probably pretty scary...maybe we would be marrying our dogs one day!

I, on the other hand, look at it from a Human Rights-tinted perspective, and the potential "domino effect" on that side. If we as a society are able to justify treating some segments within our culture in a "less-than" capacity, then how much easier will it be to begin to take away other liberties from other segments of our population down the line? There are ZERO negative effect on my rights if Gays are allowed to marry. If they're not allowed to marry, then to me, a straight non-white male, that's just another crack in our Constitution, and makes it easier for MY civil liberties to be questioned, and perhaps, denied.

No on 8.

Holly said...

Mike, I'm not saying Prop. 8 is "separate but equal." That's the correlation I believe you were trying to make. I defined what “separate but equal” meant in the context of Plessy/Brown. So “separate but equal” isn't applicable in regard to Prop. 8: Inequality of facilities or services isn’t a factor in domestic partnerships, as these have the same legal standing (rights and responsibilities) as marriages in California.

I think what you’re trying to say is: Even though domestic partnerships have the same legal standing as marriage, you think it’s wrong to have two separate laws, one for same-sex couples, one for opposite-sex couples. You think this constitutes segregation.

And my response to that is: I don’t think this constitutes segregation. Rather, I think it is appropriate if those two laws reflect the current values of Californians.

An illustrative social example of this is public restrooms. There are public restrooms that are completely identical other than the sign on the door. Americans, on the whole, don’t like the idea of co-ed public restrooms. This may sound trivial, but there are currently legal battles going on about this. (One provision in Colorado SB 200, passed earlier this year and currently being challenged, mandates that all public restrooms are now co-ed. Personally, I hope California never pushes for co-ed restrooms; I’d be deeply concerned about how this might contribute to increased incidents of rape and child molestation.)

There are many examples of unequal legal treatment. Courts usually award custody to the birth mother. In this situation, the mother’s rights seem to be greater than the father’s. It reflects society’s belief that a child belongs with their mother. While not everyone agrees on this, this is the value that is being upheld by the courts.

Every law is the imposition of someone’s value. Consider polygamy. Multiple marriages aren’t recognized anywhere in the United States, and this “unequal treatment” will continue unless American society decides to uphold the rights of multiple marriages as a value. Or child pornography. Why is it legal to view adult porn but not child porn in the privacy of one's own home? Because American society doesn’t approve of the latter.

Simply put, while Americans may be equal as part of our national value, the law doesn’t treat everyone equally.


Anonymous said...

A civil rights issue is one in which, all other things being equal, one segement of society is treated differently than another.

In the case of civil rights issues, we are saying that race is not a qualitative difference, so all other things are equal.

In the case of same-sex marriage, all other things are not equal. A man is qualitatively different from a woman. In fact the term "same-sex marriage" is really a non-sequiter, like saying a "round square." Marriage is the union of a man and a woman. You cannot change what-it-is anymore than you can change the definiton of a triangle by trying to state that it is a shape with 5 sides.

The public restroom situation is a great example. A black man has the same right to a men's restroom as a white man, or a red man, or a yellow, purple or blue man. None of those men, however, have the right to go into a women's bathroom, because they are men not women.

Anonymous said...

When did little Miss Holly Vicente become such a conservative? A far distance away from the Idyllwild Town Crier aren't we?

Holly said...

Anonymous: Greetings to the Town Crier.

I'm a bit shocked that so many people wonder at my political leanings. I've been a GOP supporter since I was 17, and registered as a Republican when I turned 18. I've never changed my party affiliation. I'm a graduate of a well-known conservative college; part of the reason I choose to go there was its political bent. And I've never been quiet about any of this.

Perhaps people see that my spiritual beliefs haven't been consistent all my life. I spent nearly a decade exploring major and minor religions and spiritual practices. I've written about this experience many times, including how and why I became a Christian.

My political opinions, though, have been relatively consistent. I'd hazard to say the majority of my friends like me, but don't like my political opinions. This is the very definition of "tolerance"--putting up with each other's opinions, especially when we most certainly don't agree.