9 Rights Destroyed By Prop 8

[tongodeon]

Prop 8 advocates are saying (among other things) that it will stop gay marriage from being taught in schools. This is wrong for two reasons. First, Prop 8 contains no language about schools, education, or students. It's totally irrelevant. Second, it is already illegal to teach gay marriage or straight marriage in schools. California school standards require parental approval before discussing all health and family issues.

A defeat of Prop 8 will not require anyone to "accept gay marriage", whatever that means. Gay marriage is legal right now, many people don't "accept it", and they are free to do so. LBJ signed the Civil Rights Act in 1964, there are still people who don't accept racial equality, and they are free to do so.

A defeat of Prop 8 will not require religious institutions to perform gay marriages thanks to the US Constitution, whose separation of church and state which protects religion from interference by state or federal laws. Civil and religious marriages are distinct legal concepts.

What Prop 8 does do is deprive same-sex couples of rights that heterosexual couples have. Specifically, the following rights.

1. Although the domestic partnership provisions require that both partners have a common residence at the time a domestic partnership is established (§ 297, subd. (b) (1)), there is no similar requirement for marriage.


2. Although the domestic partnership legislation requires that both persons be at least 18 years of age when the partnership is established (§ 297, subd. (b)(4)), the marriage statutes permit a person under the age of 18 to marry with the consent of a parent or guardian or a court order. (§§ 302, 303.)


3. To establish a domestic partnership, the two persons desiring to become domestic partners must complete and file a Declaration of Domestic Partnership with the Secretary of State, who registers the declaration in a statewide registry for such partnerships (§ 298.5, subds. (a), (b)); to marry, a couple must obtain a marriage license and certificate of registry of marriage from the county clerk, have the marriage solemnized by an authorized individual, and return the marriage license and certificate of registry to the county recorder of the county in which the license was issued, who keeps a copy of the certificate of registry of marriage and transmits the original certificate to the State Registrar of Vital Statistics. (§§ 306, 359; Health & Saf. Code, §§ 102285, 102330, 102355.)


4. Although the marriage statutes establish a procedure under which an unmarried man and unmarried woman who have been residing together as husband and wife may enter into a “confidential marriage” in which the marriage certificate and date of the marriage are not made available to the public (§ 500 et seq.), the domestic partnership law contains no similar provisions for “confidential domestic partnership.”


5. Although both the domestic partnership and marriage statutes provide a procedure for summary dissolution of the domestic partnership or marriage under the same limited circumstances, a summary dissolution of a domestic partnership is initiated by the partners’ joint filing of a Notice of Termination of Domestic Partnership with the Secretary of State and may become effective without any court action, whereas a summary dissolution of a marriage is initiated by the spouses’ joint filing of a petition in superior court and becomes effective only upon entry of a court judgment; in both instances, the dissolution does not take effect for at least six months from the date dissolution is sought, and during that period either party may terminate the summary dissolution. (§§ 299, subds. (a)-(c), 2400 et seq.)


6. Although a proceeding to dissolve a domestic partnership may be filed in superior court “even if neither domestic partner is a resident of, or maintains a domicile in, the state at the time the proceedings are filed” (§ 299, subd. (d)), a judgment of dissolution of marriage may not be obtained unless one of the parties has been a resident of California for six months and a resident of the county in which the proceeding is filed for three months prior to the filing of the petition for dissolution. (§ 2320.)


7. In order to protect the federal tax-qualified status of the CalPERS (California Public Employees’ Retirement System) long-term care insurance program (see Sen. Com. on Appropriations, fiscal summary of Assem. Bill No. 205 (2003-2004 Reg. Sess.) as amended Aug. 21, 2003; 26 U.S.C. § 7702B(f)(2)(C)), the domestic partnership statute provides that “nothing in this section applies to modify eligibility for [such] long-term care plans” (§ 297.5, subd. (g)), which means that although such a plan may provide coverage for a state employee’s spouse, it may not provide coverage for an employee’s domestic partner; this same disparity, however, would exist even if same-sex couples were permitted to marry under California law, because for federal law purposes the nonemployee partner would not be considered a spouse. (See 1 U.S.C. § 7.)


8. Eighth, an additional difference stems from the provisions of California Constitution, article XIII, section 3, subdivisions (o) and (p), granting a $1,000 property tax exemption to an “unmarried spouse of a deceased veteran” who owns property valued at less than $10,000; however, as the Legislative Analyst explained when this constitutional provision last was amended in 1988 (see Ballot Pamp., Gen. Elec. (Nov. 8, 1988) analysis by Legis. Analyst of Prop. 93, p. 60), few persons claim this exemption, because a homeowner may not claim both this exemption and the more generous homeowner’s exemption on the same property (Rev. & Tax. Code, § 205.5, subd. (f)), and the homeowner’s exemption is available to both married persons and domestic partners. (See § 297.5, subd. (a).)


9. One appellate decision has held that the putative spouse doctrine (codified in § 2251) does not apply to an asserted putative domestic partner. (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1172-1174.)

Prop 8 is an attack on civil rights. Prop 8 alters the secular, legal instrument of marriage. And it makes very significant alterations to when and how that instrument can be created or exercised: 1) allowed location and circumstances, 2) age, 3) officiants and registration, 4) couples' privacy, and 5,6) termination. Beyond the contract itself there's the right to 7) medical and 8) military service benefits.

#1, #2, and #3 are important for tax or legal purposes, when couples are applying for citizenship, when couples are separated by travel, prison, or foreign service, and for property rights. (I've learned through personal experience that changing your legal residence in San Francisco has *extremely* important consequences for a homeowner's property rights.) The secrecy provided by #4 might not matter to straight couples, but confidential marriage is a much bigger deal to homosexual couples who might not want to give bigots a roster for where they can be found. #5 and #6 become important for everything from debt to abusive relationships. #7 and #8 are self-explanatory. Putative marriages (#9) are tremendously important in cases of property or legal rights where the spouse is sick and dying - any time when paperwork is challenged after death. Same-sex parents also have to apply to be declared legal guardians of their own children. (Yes, same-sex can have their own biological children a number of ways, including IVF or retaining them after a divorce from previous heterosexual relationships.)

Maybe you're uncomfortable with the idea that, somewhere out there, there are same-sex couples. Prop 8 will not prevent them from living together or sitting in front of you at a movie theater. It *will* prevent them from doing things like visiting each other in the hospital, escaping abuse, obtaining medical care, renting or selling their private property, or (ironically) dissolving their partnership. Things that you will never see. I have a hard time believing that anyone is that petty, but many Californians seem to be.

No on Prop 8.