Tuesday, May 26, 2009


Ruminations about Proposition 8

The California Supreme Court has ruled that Proposition 8, the constitutional amendment that prohibits the State from granting marriage licenses to same-sex couples, was correctly enacted and is now the law in California. A few hours after the ruling was announced I listened on the radio to a talk show host (Patt Morrison) who invited listeners to comment on the court’s decision. One person asked the question of why “Domestic Partnership” or “Civil Union” weren’t adequate substitutes for “Marriage.” There was no answer given to this question while I was listening to the program. Another person suggested that the State should get out of the marriage business altogether, so that anyone “married” by a judge or other civil official would be in a civil union and not in a marriage. Marriage would in that case be a religious act, not a civil one.

I wonder about this question. I’ve never heard an answer in legal terms as to why Domestic Partnership isn’t just as good as Marriage. The only thing I can think of is that the law provides certain benefits to “married” couples that it does not provide to “domestic partners.” I don’t think it is a California law. The supporters of Proposition 8 were careful to point out that they merely wanted to change the definition of “marriage” and not to deprive any domestic partners of any rights. Hence, it must be federal law.

So, my question is, is there a body of federal law, either statute law or constitutional law, that provides benefits to married couples only and not to domestic partners? If there is such a set of laws, then the opponents of Proposition 8 have a good case to justify overturning the proposition.

A related thought is that it is almost ridiculously easy to amend the California State Constitution. All it takes is about a million dollars for signature gatherers and a majority of the voters at some obscure State election, where the turn-out may be as little as ten percent of the registered voters. Thus, five percent of the voters can amend the State Constitution. My cynical view is that the requirements for amending the document are much too lax. It’s bad enough that a majority of ten percent can enact laws. The requirement for amending the State Constitution ought to be much higher. At present it is possible for this selected five percent of voters to amend the document such that future amendments, including the repeal of former amendments, require a higher voter turn-out and a supermajority of voters, such as 2/3 of turn-out with turn-out at least fifty percent. There is, in fact, talk of holding a constitutional convention to modify the way State government operates and the way the constitution is amended. That’s a subject for another post.

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