Tuesday, October 28, 2008

Another Myth Dispelled

I've heard some argue that Prop 8 should be defeated to ensure that California same-sex couples who move to other states will be able to force those states to recognize their marriages.

Opponents of Proposition 8 have also argued that defeating Prop 8 is important to ensure rights from the Federal Government for same sex couples. A friend of mine wrote the following to me: "Exactly 1,138 benefits, rights, and protections [are] provided on the basis of marital status in Federal law." His point presumably was that defeating Prop 8 will ensure that California same sex couples get these thousands of federal rights that are being denied to them now.

In a nutshell then, those against Prop 8 argue that Prop 8 could take away the rights of same sex couples under Federal law and under the laws of other states.

This is false and here's why:

In 1996, President Bill Clinton signed into law Public Law No. 104-199, 110 Stat. 2419. This is more commonly known as the Federal Defense of Marriage Act or "DOMA."

DOMA has two main effects.

First, it provides that no state is required to recognize a same sex relationship as a marriage within their own state, even if the same sex relationship is called a marriage in another state. (See 28 U.S.C. Section 1738C).

This means, for example, that if a same sex couple is "married" in Massachusetts, but then moves to Ohio (where the Ohio Constitution bans same sex marriage), Ohio does not have to recognize that "marriage."

Second, the Federal Government may not (i.e. is prohibited) from treating same sex relationships as marriages for any purpose, even if recognized by a state. (See 1 U.S.C. Section 7).

Thus Prop 8 cannot take away any federal rights from same sex couples, because DOMA prevents the Federal Government from recognizing any same sex "marriages." Prop 8 will also not take away rights of California same sex couples who move to other states, because DOMA does not require other states to recognize California same sex marriages.

Please remember to vote YES on Prop 8! All of our hard work and efforts to persuade others does not mean anything if our own vote is not counted.



emily said...

awesome greg!

hasn't obama said something about wanting to repeal DOMA? do you know anything about this?

p.s. totally re-posting on my blog

Preserving Marriage Blogger said...

Obama has said that he wants to repeal DOMA.


Joe Biden has come down squarely on both sides of the issue (much like John Kerry being before it before he was against it??). In the VP debate on October 2nd, Biden said that he was against calling same sex unions marriages, but then on the Ellen show on October 5th, he said: "If I lived in California, I'd clearly vote against Prop 8."


To me, however, Prop 8 is not a Republican or Democrat issue. I hope that all people, no matter what their party affilation, can support Prop 8 for any number of good reasons that have been posted on this and other blogs.

emily said...

i agree, thank you.

Jessi said...

LOVING the blog. Keep up the GREAT work!!

Becca said...

Wow, I had no idea what DOMA was, thanks for the information. One more reason to vote YES on Prop. 8.

Christa Jeanne said...

Great post, Greg! I've heard people use the benefits argument against Prop. 8, but Social Security and taxes are dealt with at the federal level, not the state - and DOMA prohibits any changes there (for now, at least).

The only "rights" that straight marriages offer and civil unions might not, from arguments I've heard, are medical rights and inheritance. Both can be simply, simply solved by giving a partner the power of attorney and by leaving a will.

So, effectively, the rights argument DOESN'T work! The only difference is terming it "marriage" or a "civil union."