Accommodating Prop 8
Con Law Professor GL discusses today in the LA Times a few of the legal issues surrounding the ban on gay marriage. Most Boalties are probably familiar with them by now.
A question he didn't address, and one I would like to hear about, is this:
What happens when a same-sex married couple approaches a state bureaucrat and asks for a state benefit normally accorded to married couples, and the bureaucrat refuses because granting the benefit would violate the California Constitution as amended on November 4th?
A question he didn't address, and one I would like to hear about, is this:
What happens when a same-sex married couple approaches a state bureaucrat and asks for a state benefit normally accorded to married couples, and the bureaucrat refuses because granting the benefit would violate the California Constitution as amended on November 4th?
Labels: Prop. 8
posted by Patrick Bageant at 9:59 AM
23 Comments:
What sort of benefit are you talking about? Because pretty much any benefit that is available to married people is available to those in a domestic partnership in CA. Prop. 8 did not change that- it was almost exclusively about nomenclature - the word "marriage." So.. I'm not sure if there are any rights (state wise) that are only afforded to married couples.
But are married gay couples domestic partners?
I would imagine a great many already have domestic partnerships. I'm not saying all of them do, but more that they are fully capable of getting these rights, married or not. Mostly I'm not sure how important that question is, in that there is an easy route to getting those same rights. I realize this could be annoying, and is clearly discriminatory (don't get me wrong, I was hugely against Prop. 8). I just think it's more important to ask things like- will their marriages be recognized in Massachusetts or NY? Rather than, will they be able to get rights they already could have.
I just think it's more important to ask things like- will their marriages be recognized in Massachusetts or NY?
Isn't the answer to this no based on DOMA? I still cannot understand how DOMA passes muster under art. IV, sec. 2.
Can't you just say "under the P&I clause" like everybody else?
Nope, too stupid to do that. I was thinking, "um that clause thing with states...the thing." So then I looked it up on LLI. Plus P&I clause can be confused with the 14th Amendment.
Maybe we can just go ahead and repeal DOMA already so that none of this matters. Or maybe our new President can repeal it by executive statement.
I guess I could do the research on this myself, but I'd much rather be lazy and depend on the knowledge base of everyone out there.
So my question is this, what does it mean that, to quote 11:01, "pretty much any benefit that is available to married people is available to those in a domestic partnership in CA." I've heard this a lot, but have never really been sure exactly what benefits are not afforded to gay couples in domestic partnerships. Are there state benefits not afforded to domestic partnerships? Federal benefits?
What do you guys think about the protests going on at Mormon churches?
I haven't really decided what I think about it. Is it fair to demonize one particularly unpopular religious group? I mean, yes, they brought it upon themselves. But they certainly weren't the only people who voted for this thing. I don't know about any of you, but I've been finding out over the last week that some of my friends and [extended] family did.
My understanding is that domestic partnerships get the same state benefits, but that married couples get a federal tax benefit. I'm probably wrong.
Shouldn't we be protesting nursing homes, too? I mean, old people overwhelmingly supported Prop 8.
(I'm really worried about all the old, straight, black Mormons out there - watch out!)
matt,
correct me if I'm wrong, but I don't think nursing homes were sending letters to their residents telling them to vote yes on 8 and asking them to give money to the cause.
I'm not sure how I feel about the protests at mormon temples, but I understand why mormons are being targeted.
Caley - all federal marriage benefits are denied same sex domestic partnerships or marriages. A handful of relatively unimportant CA state rights are denied domestic partnerships as opposed to marriages. Most of these relate to formation and dissolution rights. You can read the briefs in In Re Marriage Cases if you want to find out exactly what they are.
Building on mailing campaigns, of all the prop 8 press, this article is the one that made my blood boil.
If my joke about old, straight, black Mormons didn't make it clear, I think it's rather unwise to protest any particular group. I really don't see how standing outside a Mormon Temple shouting about how terrible they are is changing any minds or making any progress. If anything, it seems spiteful to me.
But I can understand why people are angry and how that anger drives them to protest. It's just not my style.
The biggest problem is that if Gay Marriage is allowed, everyone in a straight marriage will be required to get one. And an abortion.
Ah, another opportunity to weigh in on Mormons. I've had so many this year!
I think what the protests will accomplish (possibly) is making the LDS leadership rethink the costs of getting so intimately involved in such a bitterly divisive political issue. I mean, a year ago the general consensus on Mormons (trust me, I've heard it) was: strange beliefs, but really nice people. The first thing that springs to mind now? Biggoted homophobes. Their actions have branded them as the most anti-gay church in the country, and that's really saying something.
The protests help to emphasize that cost and, hopefully, make church leadership think twice before getting involved again.
Think twice in what way, Dan? The LDS Church didn't support Prop. 8 because it wanted to be popular; it thought Prop. 8 supported (Mormon) sexual morality. Yelling at Mormons or pointedly making out in front of them isn't likely to change their minds. In fact, it's likely to have the opposite effect. The campaign for gay marriage should focus on sympathy, monogamy, and equality, not confrontation.
i researched this over summer, and here some summarized answers to some of these questions.
1) DOMA does not prevent Mass. or NY from recognizing the CA same-sex marriages from this year. It merely says that states are not required to recognize gay marriages from other states; but NY at least has affirmatively stated that it will.
2) Because of DOMA, *no* federal benefits are afforded to any same sex couples, regardless of the state they reside in. This amounts to over 1000 federal marital rights (e.g. veterans' benefits, disability & social security eligibility, etc), and a huge headache come tax time (in CA, gay couples must file as married couples even if they only have domestic partnerships, while filing as single individuals for federal taxes).
3) Also, if DOMA is repealed, that does not automatically mean that all states will have gay marriage. Rather, it would likely mean only that the federal government would recognize same-sex marriage for federal benefits *only from states that allow same-sex marriage* (e.g. Massachusetts, Connecticut). I highly doubt you could have federal recognition where there is no state recognition of marriage. So even if DOMA is repealed, state mini-DOMAs (like Prop 8) will still stand.
Of course, if DOMA is repealed, then a federal suit challenging any or all of these mini-DOMAs as unconstitutional under the federal constitution becomes more realistic.
http://www.lectlaw.com/files/leg23.htm
4) Married gay couples are not necessarily going to be considered domestic partners, under state law or in other states - unless they retained their CA domestic partnerships (or equivalents from other states) at the time of their marriage.
Another interesting legal problem: It is hazy whether you can get a domestic partnership after being married (provided it is to the same person), since of course, there have never been people who could theoretically do both in CA until this year. Domestic partnerships in CA are available only to same-sex couples and straight couples ONLY if one or both partners is over the age of 62. Perhaps yet another important question is whether it would be a viable compromise to open the DP laws so that both gay and straight people can get them, instead of only gays and senior citizens.
In other words, the best advice for all these gay married couples would be to try to register for domestic partnerships too. I think that the question whether this is possible is actually very important, because:
- DPs in CA are only treated as marriage according to a supreme court case, which one could argue goes against the language of prop 8 (and I wouldn't be surprised if they tried)
- Dissolution rights differ greatly between marriages and domestic partnerships. These differences become important if you & your partner move to another state, acquired joint property, had children during the union, etc. All this law is still being figured out, whereas marital law has been settled.
5) I was a huge advocate for the No on 8 campaign and I was offended by the tactics used by the Yes on 8 campaign, but I don’t support the protests at the Mormon temple & other churches, or the ridiculous diatribe some gay people have been spouting about black/Hispanic voters. I agree completely with Matt’s POV.
6) Before I forget, an additional problem to flag is the idea some misguided gay couples have gotten that they can protest by just not paying taxes because they "are not being represented equally." The problem of course is that they are protesting a state law, and under CA state law, gay couples would be taxed in the exact same way as married couples, whether prop 8 had passed or not. Besides, is "no taxation without representation" actually anywhere in the law, or was it just a slogan? It just sounds like a bad idea.
So, if you know of any gay people planning to dodge their taxes this year under the shield of Prop 8, stop them immediately or insist they speak to a tax lawyer first to avoid problematic consequences.
It would hardly be a protest if it were simply a legal move. Anyone who chooses not to pay taxes to protest taxation without representation probably knows they can get into trouble. Just like the folks who dumped tea in Boston harbor.
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Carbolic, I understand they didn't support Prop 8 to be popular. But they are a church with an aggressive missionary program that gets a lot of its money from tithing. Thus maintaining and increasing membership is crucial to the plan.
About half my family is Mormon, so I know a little something about this. The LDS church has come out in opposition to gay marriage numerous times in the past, supporting Prop 22, a marriage amendment to Utah's constitution, and the failed (and I think aborted) attempt at an amendment to the US constitution. Each time they did so by reading a message from the church leadership to all members at Sunday sacrament meeting.
The message said: "The church believes homosexuality to be a sin...but embraces the sinners and encourages them to come to Christ...etc." Obviously I'm paraphrasing, but the jist was that the church made its position clear without telling members to do one thing or another. That was as far as it went. Most members came out and voted for the amendments each time, and the church didn't get any bad press because the only people who heard the proclamations were pretty much on board.
This time, obviously, was different. The church organized a massive campaign in support of Prop 8, encouraging members to donate funds, call friends, basically to be Prop 8's agents. Perhaps not coincidentally, the church's former President, Gordon B. Hinkley, passed away between the last marriage amendment and this one. The new administration seems to have taken a harder line.
It's that hard line that I think the protests might make church leaders think twice about taking. Of course they are going to oppose gay marriage, whether that makes them popular or not (at least until a decade or two after it's accepted by mainstream society...see their past record on civil rights issues). But there are degrees of opposition, and the church will certainly factor in public opinion when they decide how involved to get in the future.
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