Proposition 8 (Part 2)

My last post, “Proposition 8”, has received some criticism in terms of whether or not Proposition 8 does in fact substantively limit the rights provided to homosexual couples, or whether it is simply nothing more than an alteration to the wording of the definition of marriage. I think that this is a valid point to question, and one that would be best addressed through an additional post on the subject, rather than within the comments area. So, here is Proposition 8, part two.

First, let me preface all of my remarks by stating that my own personal inclination is to define marriage as between a man and a woman. The institution of marriage carries a predominately religious connotation, and given that religious institutions have traditionally established it as a union between a man and a woman, I find myself rather inclined to maintain that specific definition.

Second, I do not in any way support any action that would mandate a religious organization to perform a same-sex marriage ceremony against its own free will. I support the concept of freedom of religion with the same rigor that I find myself supporting the idea of individual equality. Any such measure, proposed either now or in the future, would be met with complete disgust on my part.

That said, it is true that proponents of Proposition 8 have offered that it does not limit the rights provided to same-sex couples because of the equality provisions ensured by California’s Family Code § 297.5. This code states that:

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.

This provision, also referred to as the Domestic Partnership Act of 2003, was heralded as one of the most progressive measures ever taken in order to ensure same-sex couple rights. And, it should be applauded, for it did provide for significantly elevated levels of equality for domestic partnerships in the state of California. Some of the positive implications of the act included:

- Protections for children of same-sex domestic partners, including the ability for courts to allocate visitation rights to each partner.

- Expanded property rights that more closely reflect those of married couples. This includes that jointly acquired assets be divided to each partner "...in proportion of interest assigned to each partner at the time the property or interest was acquired unless otherwise expressly agreed in writing by both parties” in the event of a partnership dissolution.

- Upon the death of one of the partners, the other inherits, absent a superseding estate plan, the deceased partner’s property in the same manner as a surviving spouse.

- Significantly expanded anti-discrimination protections.

- Additional employment benefits to mirror those of married couples.

This act was a gigantic step forward, and surpassed any other protections for domestic partnerships that might have been present at the time. However, it also did not provide complete equality, and left for various inequalities to still exist between the treatment of same-sex domestic partnerships and married couples. These inequalities include:

- Limitations on the filing of joint returns. Under the act, partners must still use the same filing method for state income tax returns as they do for their federal returns. And, given that the federal government does not recognize same-sex domestic partnerships for the purpose of income tax filing, this effectively prohibits same sex couples from filing joint returns.

- While judges are able to order the payment of spousal support, as they do for typical divorced couples, these payments are not tax deductible for domestic partnerships as they are for married couples.

- Section 1041 of the Internal Revenue Service Code ensures that capital gains taxes not “be imposed on a division of assets pursuant to a dissolution of marriage.” However, this does not apply to domestic partnerships.

- Domestic partnerships are not afforded similar rights to married couples with respect to obtaining Qualified Domestic Relations Orders, which are required in order to divide a private pension plan in the case of the relationship’s dissolution.

- The Domestic Partnership Act does not modify rules “defining eligibility for long-term care plans under the Public Employees' Long-Term Care Act.”

Admittedly, the majority of the above examples of differential treatment relate to the Federal handling of domestic partnerships, and would not be drastically altered regardless of whether or not Proposition 8 passes. Still, it provides tangible evidence that inequalities still exist between the treatment of domestic partnerships versus married couples, and it suggests that there remains a need to strengthen the rights provided under those partnerships if we are to ensure uniform individual rights while restricting those who are able to obtain a marriage license.

What the passage of Proposition 8 would do is to take a prohibitive step backwards from advancing equality in any of the above-mentioned areas of differential treatment. It would continue to restrict the right to file joint returns, and prevent challenges of federal laws restricting other areas of fair tax treatment.

Some might suggest that such implications are not the intent of the proposition, and that they should therefore not weigh on whether or not it is adopted. To that I say that we must undoubtedly be as much, if not more, concerned about the end result of our actions as we are with the intent that drives them. And to those who would suggest otherwise, I can only hope that a similar emphasis on intent over result be applied to all areas (i.e. criminal justice system, etc.), and not just those that benefit our own personal aims.

The argument that Proposition 8 serves as nothing more than a definitional refinement is the same that was put forth to support the passage of the 1996 Defense of Marriage Act (DOMA). However, DOMA did not simply define marriage as between a man and a woman, it instead provided a philosophical framework that to this day diminishes the strength of domestic partnerships in general. DOMA has been the core justification for the above discrepancies, and it has therefore amounted to much more than a simple definition.

Lastly, as I had argued in my first post on the subject, questions of whether or not marriage should be limited to a man and a woman are quite valid, but they carry no relevance in relation to a Constitutional document. Such documents are meant to provide and protect rights, not to limit them in any way. One comment on my previous post argued that it was simply an issue of “Webster’s…(defining)…marriage as a union between a man and woman”. In that case, it is an issue that is best argued with a publishing company rather than played out on the pages of our most central governing document.