Words on CA’s Prop 8 from my friend and former Stanford RA, Li Han Chan. She put this in an email and I asked her permission to quote it:
Some people say the right to domestic partnership is enough, but really, it isn’t. While domestic partnerships, in law, grant same-sex couples all state-level rights and obligations of marriage — in areas such as inheritance, income tax, insurance and hospital visitation, every step requires extra documentation to prove the union is legit, and that domestic partners in fact do have those rights (e.g. if you want to visit your partner in the hospital, you’ll have to do much more than just show a small credit card sized marriage license.) This is what the 21st century LGBT version of “Separate but Equal” is like. We’re not even talking about federal rights yet, such as immigration.
November 12, 2008 at 6:48 pm
Would it not be more effective to address those discrepancies, which are the same that any Domestic Partners irrespective of sexuality suffer through? This demand for “marriage” seems to be more about emotion than substance – and emotion cannot be properly addressed through legislation or litigation.
I can easily see gays winning the battle in the courts but loosing the war in the hearts and minds of people over this issue.
November 12, 2008 at 7:06 pm
Dear Jonolan, that’s an interesting point. I’m going to ask Li Han to respond to this directly – but until she does, I will quickly say that the right to marry, both in the US and worldwide, has been historically limited to many groups (i.e., only arranged marriages, only wealthy people, only white people, only people of the same race) – and the expansion of that right to gay people is part of a progression of expanding a fundamental human right to all people. I think that’s the way in which this issue is not only about emotion, but also about substance.
I do think that the discrepancies in domestic partnership should be addressed, so that, as you say, any domestic partners regardless of sexuality might not have their rights curtailed by these process hangups.
But that doesn’t change the point that the demand, as you say, for the right to marry should be expanded to all people regardless of sexual orientation. For me, it’s not about emotion as much as it is about civil liberties. If gay people are citizens, and they are, they should have all the rights of citizens – including the right to marry their partner.
November 12, 2008 at 7:11 pm
Under the law they do have all the same rights and privileges. Marriage isn’t a right, though it is a rite – which is part of the problem that the law can’t address. I await Li Han’s response on the issue.
November 12, 2008 at 7:15 pm
But, for one thing, domestic partnership benefits are not identical with the legal benefits of marriage.
Also, certainly the law can’t address the religious or ritualistic aspects of the ceremony, and shouldn’t, but marriage as an social institution has a legal definition too. It’s legal marriage – which is, I would argue, a right in the legal sense of the word – that we are concerned with trying to expand to all citizens of this country. Religious institutions have to make their own determinations.
I appreciate your comments very much
It’s good to discuss this and I look forward to hearing Li Han’s thoughts too.
November 12, 2008 at 7:21 pm
Correction: Domestic partnership benefits are, in CA, supposed to be identical with the state legal benefits of marriage, but not the federal ones – and, as Li Han points out, they are unequal in their implementation.
I wanted to link here too to the article you wrote on this subject on your own blog, Legislating Acceptance
November 12, 2008 at 7:40 pm
Hi Jonolan,
I agree we need to win the hearts and mind of people. And admittedly, the slogan used for No on 8 (Unfair and Wrong), wasn’t as positive or appealing, as the Yes on 8 campaign (Protect Marriage). Perhaps we haven’t articulated well enough what Separate but Equal means to us. Perhaps we haven’t reached out enough to the religious community to try and bridge the gap, even though I personally know of gay ministers and churches that support gay people and their rights. Perhaps we just assumed everyone should be open and think liberally.
I think religious beliefs and traditions should not be imposed on others, and that your relationship with your religion, is a personal one. Should everyone have the right to have multiple wives? Should every male have to be circumcised? Should everyone be disallowed to drink alcohol or eat pork? Should abortion be made illegal again?
Marriage to some is a religious event, to others, a ceremony and statement of love and union, and to yet others, a record of an event not worth the paper it’s written on. I think the community sometimes thinks – “well it doesn’t hurt the anyone for gay people to have the right to marry (and we don’t buy the school children argument one sec), and only eliminates my right to get married if I choose to, why should they care? Aren’t we just lucky to find love, regardless of what gender they are?” Perhaps we don’t realize that people who believe its ok to impose their religious views on others don’t buy this “obvious” line of thinking. So yep, I agree we (I included, and all other minorities that are only allowed domestic partnerships as a form of union) need to reach across this fence a little more.
Having said that, we clearly still haven’t won the legal battle, so I wouldn’t take that for granted. I hope everyone who believes in civil rights for all, will help make progress on both fronts.
November 12, 2008 at 7:53 pm
My struggle with the issue is about the inability to achieve common understanding and consciousness (in any conceivable short time frame) from the masses and administrators, of what rights domestic partnerships are entitled to. As such, I want to be able to own the word “marry” as well, NOW, so people (such as doctors in hospitals, insurance companies, immigration and tax officials etc) don’t subject domestic partners (who currently have different paperwork) to differential treatment as people who are “married”.
Ideally – let EVERYONE just have a domestic partnership in law. Marriage as you say can be a rite or ritual, whatever suits you. but I want a gay couple’s paperwork and process in any given situation to be exactly the same as the next straight couple.
November 12, 2008 at 8:11 pm
Thanks Li Han – I think that’s a really powerful point and the one I initially wanted to emphasize the most from your quote – to have “a gay couple’s paperwork and process in any given situation to be exactly the same as the next straight couple.” Yes.
November 12, 2008 at 8:57 pm
There’s a huge number of cases where a married couple gets special legal treatment; some important, many trivial, but it adds up. My current favorite example is auto rental. Most auto rental companies charge extra for each additional person who is allowed to drive the car you’re renting, want to know exactly who they are, and have the option of saying no, our insurance doesn’t like that person — but if you’re married, your spouse gets to drive the car, no questions asked.
November 12, 2008 at 9:00 pm
Li Han,
I can understand your position. I just think that the strident call for homosexuals to be allowed to “marry” is not the way to achieve anything useful. If your complaint is that Domestic Partnerships are not conveying the same rights as marriages are, then I believe you’d be better served by addressing that failing since it is simply one of administration and enforcement; California Family Code, Section 297.5 explicitly requires that Domestic Partners be given every single right, privilege and responsibility as spouses.
In point of fact, homosexuals can be married. Heck, I’m a Pagan priest and I’ll perform the ceremony for you if you want; it wouldn’t be my first. What this seems to be about is the desire for the state of California’s government to SAY that your married. If you have the same rights under the law, who cares what the government calls it? If you want to call your partner your wife, fine. Who’s going to stop you?
I enthusiastically and wholeheartedly agree that secular authorities should strictly limit themselves to Domestic Partnerships. This is a case where separation of Church and State could work to everyone’s benefit.
My rhetoric is failing me today, so I’ll be blunt -
If you have all the same rights under the secular authority of California, why do you care if that authority calls it marriage or not? The state’s forced approval isn’t going to change anyone’s mind on the issue one bit. If anything it going to make it harder to reach across that fence in the future.
Weinberg,
I’m glad you reiterated and emphasized that point by Li Han. That is – to my mind at least – a critical issue. The law is not being followed and that must be corrected – especially since it is fundamentally infringing upon peoples rights AND violating California’s constitutional requirement for Equal Protection Under The Law.
BTW: It’s been great having this discussion. We approach things from wildly different perspectives, but we’re not that far apart in desire, just in our opinions of what are important steps along the way.
November 13, 2008 at 7:37 am
Hi Jonolan, I’m glad we’re having this discussion too.
I think it is easy to underestimate the ease of “administration and enforcement” as you call it. If it was law that only the police force or the courts had to enforce (i.e. well-defined, regulated organizations or at least a smaller subset of people), I’d agree that we should pursue the route you suggested. However, because administration and enforcement is going to be performed by EVERYONE – rental car staff, health insurance agents, doctors, tax specialists, accountants etc., I’m thinking that fighting for part-ownership of a commonly understood word “marriage” is a more viable alternative to ensure non-discrimination in the most unexpected, unthought-of situations, even if it does alienate some parts of society.
November 13, 2008 at 8:15 pm
Back on the rights issue: I’ve done some more research, and learned that marriage has been considered to be a legal “right” by the US Supreme Court in these cases: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/righttomarry.htm
However, even if we were to argue that there is no legal or constitutional right to marriage, we have to understand that the word “right,” when it comes to policy discussions, can and should be more broadly defined. We have many rights as humans that are not explicitly protected by our Constitution or our laws.
For the purpose of trying to defeat Proposition 8, it is useful to remember that the courts of this country have previously ruled on marriage as a legal right of US citizens. However, for the purpose of a larger discussion about civil and human rights, we need to be open to the idea of a “right” that is not only a legal right.
Right?
Right.
November 13, 2008 at 8:22 pm
Loving all the comments!
Again, all I can do is quote Li Han:
“fighting for part-ownership of a commonly understood word “marriage” is a more viable alternative to ensure non-discrimination in the most unexpected, unthought-of situations.”
On the other hand, Jonolan writes:
“If you have all the same rights under the secular authority of California, why do you care if that authority calls it marriage or not? The state’s forced approval isn’t going to change anyone’s mind on the issue one bit. If anything it going to make it harder to reach across that fence in the future.”
Two sides of the argument. Here’s my $3.75:
The word “marriage” and its subsidiary social words – wife, husband, engagement, bachelor party, bridal shower, bridesmaids, groomsmen, pre-nup, nuptials, honeymoon, wedding, wedding ceremony, wedding anniversary – even, at the end of life, widow/widower – even, more pessimisstically, divorce and second marriage –
we are fighting for ownership of all the social understandings and small benefits that this umbrella-concept-word “marriage” gives us. It implies a committment between two people that is meant to be lifelong.
It requires no explanation, no paperwork, no footnotes. Everyone knows what it means.
We honor that commitment at every level of our society, from car rentals (thank you Zack) to visitation rights.
I agree very wholeheartedly with Jonolan that, in the short term ,this battle is certainly alienating some more conservative people who might have looked the other way at letting domestic partnership benefits remain in the CA constitution, but drew the line at sharing the word “marriage” with gay people. I can’t disagree with that, especially when I know some of those conservatives myself. It’s true.
However, you could say the same thing about the battle for desegregating schools, or for women to have the vote. Any more aggressive, forward-looking initiative for social change always risks alienating some conservative moderates.
But nothing ventured, nothing gained – and I think that if 48% of Californians are on the side of this campaign, this initiative for gay marriage is accepted by enough of the mainstream population for it to deserve our continued support.
All we can do is keep discussing, and get a new initiative on the ballot soon.
November 13, 2008 at 11:19 pm
Dara,
I think you summed it summed it up beautifully with, “we are fighting for ownership of all the social understandings and small benefits that this umbrella-concept-word “marriage” gives us. It implies a commitment between two people that is meant to be lifelong.”
I just don’t think that using the court system to overrule he will of the voters is the right – or effective – means of achieving that end. If Prop 22 hadn’t passed and AB 43 not been the result of the court overruling the electorate, I’d probably feel different.
One of my concerns is that the way this is being fought is going to alienate a lot more than the social conservatives. I’m not a Californian, but if I was I might have – actually probably would have – voted in favor of Prop 8 because of the means by which Prop 22 was overturned and AB 43 passed. I don’t like the legislature trying to pass law that they know is currently unconstitutional and I like a small body of unelected judges overturning the electorate even less. It sets a very bad precedence.
If the litigation against Prop 8 continues, expect some other people to side against homosexuals because they will see them as people who don’t care about the democratic process.
I’d rather avoid that since it could lead even worse outcomes.