Why the Prop 8 Decision Inhibits Equality

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[2/28/10 - This post has been selected as a finalist for being one of the Best of the 2009 Just Posts! Please click here to see the other finalists and VOTE! (You can also check out the other semifinalists!)]

Yesterday, I wrote about the California Supreme Court’s ruling on Proposition 8.  Ultimately, what they determined is that “marriage” is just a word, and by limiting how it is designated, Prop 8 did not actually inhibit actual rights or protections.

They were wrong.

Consider the language of Proposition 8:

Only marriage between a man and a woman is valid or recognized in California.

This has an inherent DOMA effect.  In other words, out-of-state same-sex marriages would not be recognized in California.  The underlying implication of yesterday’s decision is that it doesn’t matter, because such a union would still have access to the same rights and protections.

Not so.

Take a look at the California Family Code and you will find an important distinction between a domestic partnership and a marriage.  There is a key requirement that domestic partners must meet in order to be recognized:

297.  (a) Domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.

(b) A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and at the time of filing, all of the following requirements are met:

(1) Both persons have a common residence.

This distinction demonstrates that separate is not equal.  Consider this case study:

I currently live in Iowa, where it is legal for me to marry another man.  Let’s say I do marry this amazing man in my life, and we are in committed marital bliss.  Yay!  [There is currently no such man in my life, alas.]  My hubby is still finishing up his studies at the University of Iowa, but I’ve accepted a new and exciting job in Sacramento.  I move out to California and start my new work until my husband completes his degree and moves out to join me.  One day, driving to work, I am in a near-fatal car accident, and I am put into the ICU at the UC Davis Hospital.  My husband immediately flies out to be with me as I recover, but he is refused at the hospital’s front desk: “Sorry, only family is allowed, and we don’t recognize your marriage.”

Think about it… if I were living in California and my husband was not, we would not qualify for a domestic partnership.  On the California side of things, our relationship would have no legal protection.  If something happened to me, or if my husband was visiting, or whatever—our relationship could not be recognized by the state of California until we lived together.

This is not a subtle distinction between domestic partnerships and marriage.  This is a clear unequal difference that is maintained by the separation of a word.

The more I think about it, the bigger a farce yesterday’s Supreme Court decision seems.  True, Proposition 8 did not “entirely repeal or abrogate” a same-sex couple’s right to commit, but it certainly limited equal protection of the laws.

Separate is not equal.  The Supreme Court might say it is, but the California Family Code tells us otherwise.

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