I was hoping I could get people’s opinions on this, because it was a question that came to me earlier that may be unanswerable.
Undoubtedly, many of the people who voted for Proposition 8 did so because they don’t believe in gay rights or governmental recognition of gay relationships. However, there’s another segment of the population, those who do generally support gay rights but were still unhappy with the Supreme Court decision, either because they considered it overreaching, or they think the term marriage should be reserved for male/female relationships. For a group like this, voting yes on the proposition was a safe vote for them. They could say to themselves, “While I support gay rights, I can still vote yes on Prop 8, because it won’t hurt gays or take away their rights. Gays can always get domestic partnerships, which have the same legal effect.”
Obviously, if California didn’t have domestic partnerships, it would have been a harder choice for that group. They would have had to really decide between full civil rights for gays or no civil rights for gays, and undoubtedly some would have made the other choice. So, I guess my question would be, to what extent did the existing domestic partnership laws affect the results of the vote? Would the ultimate outcome have been different if the partnership laws didn’t exist?
As you say, it’s very difficult to say with these kinds of counterfactuals. But I’ve never heard anyone claim that they would behave in the way you describe, so I’m inclined to think that there aren’t many such people. I expect that, if there were any, they would go ahead and still vote to kill SSM. They could assuage their discomfort by giving their support to domestic partnership laws.
For your question to be meaningful, we must be talking about a counter-factual scenario where there is still a lot of support for SSM. (Otherwise, the people you describe couldn’t tip the balance.) Domestic partnership laws would therefore look very realistic politically, even if, by hypothesis, they don’t exist in that scenario. I think this means that your hypothetical voter could easily convince him- or herself that domestic-partnership laws are right around the corner, so same-sex couples wouldn’t be without their legal rights for too long.
Well, I’m talking about California as it existed on election day, 2008, where there was a lot of support for SSM, there was legal SSM (which the proposition sought to make illegal) and there were also legal domestic partnerships that provided the same benefits of marriage.
I think there’s a lot of support for domestic partnerships and not so much for marriage because of the connotation of marriage. Most people, for all of their lives, thought of marriage as between people of opposite sexes. If it’s exactly the same in law, I don’t see the problem. SSM proponents stamp their feet and insist on full legal rights and the name “marriage” and anything else is “separate but equal.” If it’s really equal, so what? Because that’s putting a lot of people off. Including me.
Now I would not go out of my way to vote against SSM, but neither would I go out of my way to vote for it if another option was already in place, because words mean things. You can say that the relationships are the same, but the fact is that homosexuals are not called heterosexual, and heterosexuals are not called homosexual. Those are different words, and the foot-stompers don’t seem to object to that.
If they consider themselves legally bound, and they have all the rights and obligations of marriage, why isn’t that good enough? Once you get to file joint taxes and have in-laws, what’s the difference? Do they want the rights or the word?
ETA: Really for me it’s just the word. I have been known to froth at the mouth because somebody called a lectern a podium, and it happened so regularly that now the word “podium” means more than it used to, is no longer precise, and therefore means less.
Hijack in response to Hilarity:
A) Whatever position the government takes, it doesn’t really matter so for as ordinary language goes: the word “marriage” already can be used in ordinary language to describe same-sex couplings; after all, we say “same-sex marriage” and not “same-sex flabberjam”. Indeed, the word “marriage” can be used to describe any number of things apart from legally recognized marriages; e.g., we speak of a polygamist as having multiple marriages. No matter what the U.S. government does, the term’s fate in ordinary language is already settled.
B) Really, why do you care so much that the legal term “marriage” match your particular ordinary-language employment of the term anyway? Is it terribly bothersome to you, for example, that one can be “legally blind” and yet not blind in the ordinary sense of lacking sight, or that one can be uncontroversially acknowledged to have committed a crime and yet, all the same, legally declared “not guilty” for some reason or another? I doubt one person in a hundred, speaking off the cuff, giving their ordinary language impression of terms like “malice” or “recklessness” or even “person”, will find it to match very well with the legal terms. Nor should they expect it to; legal language and ordinary language are not very tightly coupled.
C) The reason marriage equality proponents would like same-sex marriage to not be a separate institution from opposite-sex marriage (as it would be were marriage to remain restricted to opposite-sex couplings while a new institution of “domestic partnerships” or “civil unions” or what have you was created to cordon off same-sex couplings) is that history has shown a strong tendency for separate institutions to not remain equal, particularly when one side of the separation is a group already subject to much persecution. Merge the institutions, and you have a strong guarantee that they will remain equal, by tautological fiat. Keep the institutions split, and there is every likeliness that discrimination will occur. There is a reason the phrase “separate but equal” has such pejorative connotations.
I am. Sorry, but I had misunderstood what you had said in your last post, and so was responding to what I thought you said instead of what you had actually said. My fault.
The thing is, “If it’s exactly the same in law” is a hypothetical that exists nowhere in the nation. In no state in the Union are gay marriages exactly the same as straight marriages, because the Union itself does not recognize gay marriages. And civil unions, even in California, are even less equal. So saying, “If it’s really equal, so what?” is a red herring, because it ignores the fact that we don’t have equal rights. That’s the goal, but it’s not the reality any where in the United States.
Now, the question is, how do we achieve that goal? Can we do it through a separate “civil union” law distinct from marriage law? It’s not very likely. For one thing, US law is based on a system of precedent. There’s centuries of precedent behind marriage law. Civil Unions would be new law, and we’d have to create all those precedents all over again. And there’s no way to guarantee that those precedents would be decided the same way. Additionally, marriage law is not static. It changes fairly regularly, usually in small but significant ways. Under a separate but equal system, every time there’s a change in marriage laws, you’d need to legislate an identical change in civil union laws. And as another poster pointed out, by being separate, civil unions are vulnerable to specific legal and legislative challenges that would affect it, but not marriage.
So, the absolute best case scenario for a separate but equal situation is one of constant duplication of effort at enormous expense. The worst (and, IMO, most likely) case is a civil union law that starts off only kinda-sorta equal, and is swiftly crippled through hostile legislation and unfavorable legal rulings.
This is one of the sillier objections to gay marriage. Yes, words mean things. And meaning isn’t derived by legislation or court ruling, but by popular usage. And popular usage has already shifted to include gay couples in the term “marriage,” even if the law hasn’t caught up yet. Look at any state that has civil union laws. No one says, “Steve and I unionized last week.” They say, “married.” Everyone else calls them married. They refer to each other as husband and/or wife. They call eachother’s families in-laws. If they split up, they’ll say they’re divorced. All the language of marriage has already been ported over to describe gay relationships, because the concepts behind the relationship are obviously identical, and it doesn’t make any sense to invent new words to describe identical things.
All of the above having been said, yes, we also want the word. Words can have a lot of power, and “marriage” is one of the more powerful ones out there. I don’t just want the legal baggage of marriage. I want the subtext, too. And the subtext to marriage is a lot older and stronger than a bullshit neologism like “civil union.”
Yeah, that’s great. Words change. Get over it already.
IANAL, but a state could simply decline to recognize a civil union/domestic partnership on the grounds that no such status exists in their laws for any couple. They wouldn’t even need to invoke public policy like they would with a marred same-sex couple. A federal agency declince to recognize a civil union/domestic partnership based on the same logic; federal statues refer only to marriage. They wouldn’t need to address whether or not the federal government must recognize SSM at all.
Count me as one who thinks that SSM laws are the wrong way to go. Mind you I’d have voted against Prop 8, but with eyes rolling.
Miller asks “how do we achieve that goal?” - the goal being having gay couples given legally recognized rights (and responsibilities) as heterosexually married couples.
The success of Prop 8 in California shows that calling it marriage is not going fly across large parts of the country. If it can’t happen in a solidly blue socially liberal state like California then it’s not going to happen in most of the states of this country or for this country overall. You will not achieve the goal by that means. Calling it marriage is a hot button step too far.
OTOH California can be a model of how domestic partnerships can work well. California is itself big enough to establish a body of precedents. Imperfect yes. But binding domestic partnership and civil unions are achievable in more of this country than calling it marriage is, and as Miller points out, even calling a gay union “marriage” does not equal the same rights.
And IANAL either but I would guess that a defined civil contract would have more of a chance of being held as legally binding in another state than a state marriage law has of being recognized.
As a matter of tactics the focus on the word rather than the legal recognition and protections is ill advised.
But Miller was only pointing out that if a state calls a same-sex union “marriage” while the federal government refuses to do so, then this will not equal the same rights as an opposite-sex union which is called “marriage” by both. This is not an argument that “calling a gay union ‘marriage’ does not equal the same rights”; it is an argument that “if any relevant branch of government refuses to call a gay union ‘marriage’, then it will not equal the same rights”.
I doubt very much that the people who voted for Proposition 8 felt at all enabled to do so by CA’s Domestic Partnership laws.
Now, let me first say that Prop 8’s proponent lied their asses off to get it passed. They stated outright that the failure of Prop. 8 would mean that kids would be taught about gays in schools and that churches that refused to marry gays could be sued or charged criminally. That’s bullshit, but I’m inclined to give a pass to people who got taken in by it. There’s no sin in ignorance, and even less in believing a lie.
But the people who voted for Prop 8 on it’s actual merits do so for a very simple reason: They believe that gay relationships are not worthy of the label marriage, that the love between gay people is lesser than that between straight people, and that gay people are lesser than straight people. Or perhaps they merely hold a strict sense of tradition of higher value than the happiness and welfare of their fellow man. In either case, while I’m sure that some Prop. 8 supporters were able to point to Domestic Partnerships to smooth over their bigotry in their own minds, I’m quite sure that the vast majority of them would have voted for Prop 8 even without it.
Huh? Are you considering a scenario where domestic partnership laws don’t exist or not?