After yesterday’s ruling from the California Supreme Court on Proposition 8, it seems we can get marrid in California, but we can’t get married. At least according to Seneca Doane at the Daily Kos:
In last year’s landmark 4-3 decision, In re Marriage Cases, the California Supreme Court decided that same-sex couples have a fundamental right under state law to every single advantage that heterosexual couples do, including the right to call their legal union “marriage.”
Today, the court unanimously upheld the substantive fundamental right. Liberal to conservative, they all now accept it. They construed Prop 8 as narrowly as possible: as a initiative that addressed what we would label these relationships that we normally call marriage. The voters said that we can’t call these relationships “marriage” when they involve same-sex couples. That’s an insult to gays and lesbians and I hope and believe that it will not last.
Here’s an excerpt from the ruling (p. 36-37):
Applying similar reasoning in the present context, we properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: “Only marriage between a man and a woman is valid or recognized in California.” By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.” Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage” under California *\37 law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588), Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.
Which could be interpreted, according to Doane, as meaning:
We now have two kinds of marriage in the state: those conducted up until the day Prop 8 passed and those conducted starting the day after it passed. For the former marriages, those conducted by both heterosexual and homosexual couples can be called marriage. For the latter marriages, heterosexual marriages can be officially called marriages and homosexual marriages — which are still marriages in fact — have to be called something else. So don’t bother us about retroactivity; this difference between pre- and post-Prop 8 marriages is no big deal.
I think his interpretation is largely correct. The thing I can’t get past is: if you call it something else, it is something else. Names are powerful.
Also: how does one go about getting marrid? What is the official process?
I don’t know enough about the law, but it does seem to me that the judges, yeah, all recognize that this is a civil rights issue, but that the State Constitution provides leeway to create amendments that infringe on civil rights? But only in superficial ways? What?
Assuming that Doane is correct:
Look at all the arguments people give for legalizing same-sex marriages. Most are marital benefits — joint ownership, medical decision-making capacity, financial benefits.
If same-sex unions have the same legal rights and benefits as mixed-sex marriages, does it matter what they are called? Specifically, what they are called in the legal arena (since what we call our significant others in the real world isn’t up to legal review).
OK, what about the argument that names are powerful, that if it’s called something else, it’s not marriage?
Is there really anything magical about “being married?” Look at all the couples who come home from Las Vegas “married.” Look at all the bad marriages that last minutes (or decades). Look at all the battered wives and deadbeat dads and single moms.
What people on both sides of the argument seem to be missing is that calling it “marriage” doesn’t make it a long-term committed, loving relationship. Just the opposite: a long-term committed, loving relationship makes it a marriage.
The law can’t give you that.
Dianne, I agree with much of what yousay, but the Prop 8 supporters are instintively right. What you call it fundamentally matters. Words matter most of all. So not calling it marriage is just a goddamned lie.
Like I said yesterday:
CA already had civil unions. This is like saying ‘separate but equal.’ Until we get full rights across all states we will be relegated to the back of the bus. Once enough states recoognize it, the fed govt will have to join in.
The Supreme Courts do not make laws, they just interpret them. We still need another law on the books to get full rights.
I don’t really give a fuck about state sanctioned “marriage” or anything else, but I do give a fuck about quiltbag families being treated as well as everyone else.
Ask your self about the title of the federal law DOMA — “Defense of Marriage Act.” What/who the fuck are they defending against??
I’m weary of this whole discussion. It pisses me off. Maybe I will go to Fresno after all on Saturday.
As Robin Tyler has said: civil rights movements in this country have always won in the end. Always. And we’ll win this one. I’m just tired of waiting.
This is the official process for getting marrid (sic):
Go to your local notary, which is often found in a Kinko’s. Fill out a one-page form with your name and the name of your spouse. Show them your driver’s license (I think). Notary will sign the form and give you a copy.
Congrats, you marrid folks!
[end sarcasm]
Seriously, though, this is the process for domestic partership. My partner and I did it earlier this year. It was really pathetic how it compared to getting “married.” No ritual, no community, not even a fancy souvenir marriage license. Domestic partnerships/civil unions will never even be close to separate-but-equal until the ritual follows. Ritual is important. That’s why marriage (spelled correctly) is important.
Yes, Robin Tyler is right. And she was also correct when she followed that up with this, “But as in all civil rights movements, we will have to fight like hell for it..”
I’m just glad there are people like her keeping up the good fight. Now if this same community (our community) could just agree on how to go about that fight, I think we’d be further along.
I think I mis-spoke in calling what CA has (domestic partnership) a ‘civil union.’ Thanks Malinda. Another thing that my friends have pointed out to me is that once they registered as partners, they were forced by CA law to file a joint tax return for their state income tax. And then they had to pay for two more returns to file separately for the IRS. They ended up paying more in taxes and accountant fees than they had been previously paying. Just one more slap.
Jennifer, you’re right about the taxes. We will now have to file jointly for the state, but we also have to file separately for federal yet prepare a joint tax return as well, just in case or something. I have an accountant b/c I’m self-employed, but those who file their own taxes (you have my sympathy) are likely to be confused.
I am so very tired of this separate but equal crapola. Except that, of course, any protection is better than nothing.
What’s your best guess for equal-protection-under-federal-law for s-s couples involving (a) actual marriage, and (b) marridge? I’m thinking 2011…
I don’t know. I think first CA has to be won. Next up in 2010, and I am hopeful for that happening, but it really could go either way still. If we lose in 2010, we’ll take it up again in 2012. And 2011 will be a campaign year for Obama. Not likely to want to rock the boat too much. So I’m thinking 2013 is more likely the soonest it could be.
This blog, < HREF="http://unitethefight.org/" REL="nofollow">Unite the Fight<> keeps up with the news – I read the report of the recent gallop poll re people in favor of ss marriage — majority of Americans still oppose 57 to 40%. We may have to wait for the younger people to become majority.
You know that two men have filed with the US Supreme Court to repeal Prop 8? Well a lot of the quiltbag leaders are coming out against that. They think the timing is off. Recommending no more law suits, get them at the ballot. Makes sense to me.