Prop 8: Elton John is Wrong – An Explanation as to Why “Civil Unions For All Couples” Won’t Work.
November 15, 2008 by Johnny California
Filed under Ballot Propositions
Earlier this week, Elton John suggested that the Prop. 8 problem could be solved with “civil unions for all” and the marriage part could be left up to religious organizations.
Elton’s idea has been floated around by many people on both sides of Prop. 8, and today it got some support from ultra-conservative Pepperdine Law Professor Douglas Kmiec in the SF Chronicle (yes the same Pepperdine Law School from which the Yes-On-8s Minister of Mis-education hails). We’re going to try and explain why this won’t work. We’ll try to explain it as simply as possible, it’s a little more complicated than our other explanations of Prop. 8 legal issues, so if anyone is still confused after reading this, let us know.
Here’s what Prof. Kmiec’s had to say in today’s Chron:
The governor has administrative authority to have regulations issued interpreting family law, and nothing in Prop. 8 precludes him from ensuring that homosexual and heterosexual couples are treated equally under state law so long as he stays clear of “marriage.” This could be accomplished by limiting the state of California prospectively to the issuance of civil unions for all couples, rather than marriage licenses, leaving marriage, which in origin is predominantly a religious concept and not the real business of the state, to religion.
The idea of “civil unions for all” is a nice idea in theory, but under the current law it is completely unworkable. And we’re cool with Elton John floating the idea, because it’s harmless. But the fact that Professor Kmiec proposed something like this is ridiculous — and we’re not saying that because we have it out for Kmiec. He’s too socially conservative for our taste, but he’s no dunce.
Alright let’s get down to it:
First off, the governor may have administrative authority to issue regulations “interpreting the law” in certain circumstances, but what Professor Kmiec proposes goes far beyond “interpreting.”
Ya see, here in California we don’t have “civil unions” we have “Registered Domestic Partnerships” (“RDP”) and under the California Family Code, RDPs are explicitly limited to same-sex couples and in certain cases, heterosexual couples over the age of 62.
if Gov. Schwarzenegger were to OK RDPs for man/woman couples, he’d have to add the “all heterosexual couples” provision to the existing RDP law. That’s not “interpreting” the law, that’s “the governor unilaterally changing an existing law without the legislature or the voters voting on it.” This is a bigtime separation of powers problem and would be met with a gazillion legal challenges from Yes-On-8ers, No-On-8ers, and throngs of government watchdog types.
Then there’s the problem of federal law. The Defense of Marriage Act (“DOMA”) prevents same-sex couples from receiving federal marriage benefits, but it could also happen to heterosexual couples. Check out how DOMA defines “marriage” and “spouse.”
“the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’”
Under the California Family Code’s definition of an RDP, there is no reference to a “marriage”, a “husband” or a “wife.” Yeah, the Code mentions “spouse” when talking about RDPs having the same rights as spouses, but it never defines what a “spouse” is.
This may seem like a minor detail that could be easily rectified, but it’s not and it can’t. It’s these seemingly minor details that become “loopholes” in the law. And this particular minor detail leaves a giant, gaping loophole through which Prof. Kmiec’s newly minted heterosexual RDPs could find themselves ineligible for federal marriage benefits.
Now you may be thinking “So what? A heterosexual couple goes and gets married by a religious official and then they get full marriage benefits. What’s the problem with that?”
The problem is the separation of church and state (or, if you want to impress your friends, “the Establishment Clause of the First Amendment”). Under Professor Kmiec’s modest proposal, if heterosexual RDPs want to be 100% sure that they get federal benefits as husband and wife, they must have their “RDP” sanctified by a religious organization. This would go in the First Amendment Violation Hall of Fame. Even a prayer-in-public-schooler like Prof. Kmiec can’t deny this.
Closing up these loopholes would require Congress to amend legislation in every area of federal law that deals with marriage — this means tax code, immigration, the criminal code, housing, public assistance, federal pensions, the list literally goes on and on and on. And of course, getting Congress involved is the worst thing that could happen right now, it’s the perfect divisive social issue that could be used to knock President-Elect Obama’s agenda off track.
OK we’re starting to go off on a tangent. Anyway, you get the idea. Are there other theories as to why “civil unions for all” couldn’t work? Sure. It’s an untested area of the law and not as cut and dry as explaining a lawsuit or legal procedure, but one thing we know for sure is that it’s way cleaner and easier to just let same-sex couples get married.
Questions? Comments? Disagreements? Fire away.
Thank you for this thoughtful response to my commentary. Here are just a couple of additional comments to consider:
1. The Governor has an obligation to ensure that the laws of the state are evenhandedly applied; in light of the California Supreme Court holding that sexual orientation is a suspect class, that obligation arguably includes construing the California family code, including any undefined term such as “spouse” in the RDP statute as well as any of the other general family code provisions articulating the importance or significance of the family in a way that does not differentiate on the basis of sexual orientation;
2. It is well settled in the case precedent of the federal and state courts that equality can be ensured by either granting a new right or withdrawing an existing one. Thus, equality can be provided either by extending marriage to same-sex couples (this path is, of course, blocked by proposition 8, itself) or withdrawing, prospectively, from “marriage” licensing altogether;
3. Even if the Governor took the most conservative view of his administrative, regulatory authority and found the existing family code insufficient to issue such regulations, at a minimum, the Governor could propose the civil union for all idea as a remedial option for the court to consider on Monday through the Attorney General who is required to give his views in briefing; the remedial power of the court to construe existing code provisions is arguably more expansive than the Governor’s administrative authority alone; you’ll remember that both the Vermont and Massachusetts courts gave the legislature a period of time in which to enact appropriate legislation to bring their respective states into compliance with the equal protection holdings in favor of same-sex couples in those states;
4. yes, state civil unions would not confer any federal marriage rights so long as the Defense of Marriage Act (DOMA) was in place; but a California marriage license issued to a same-sex couples would have been equally ineffective to convey federal rights; if federal rights are to be provided, DOMA will need to be modified or repealed;
5. the establishment clause problem is capable of being addressed in the drafting of either administrative regulation or legislation; specifically, regulation and then any confirmatory or validating legislation would provide that going forward civil union status within the state of California substitutes for the past practice of marital licensing issued under the family code;
6. What then is the value of a religiously granted marriage license? the marriage bond and any certificate issued by religious organizations governs status only within the church community; it would have no operative effect in the state or federal secular systems; for those of us who believe that marriage is a status authored by God himself, this is not insignificant even as it has no temporal effect; importantly, separating state granted civil union from religiously granted marriage does avoid the encroachment by the state on private religious belief that was occasioned by the California Supreme Court decision without proposition 8; so too, the proposed separation of function also avoids the imposition of religious belief upon nonbelievers that is implicit in the passage of proposition 8.
Again, thank you for your thoughtful exposition of the issues involved in the pending litigation. Hopefully, these additional thoughts suggest that the proposed compromise outlined in my San Francisco Chronicle essay is more tenable than perhaps first thought. In any event, both these thoughts and those offered initially, I hope do convey the importance of demonstrating respect for the dignity of all Californians and the continuing importance of observing religious freedom in ways that proposition 8 did not successfully address.
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Johnny California Reply:
November 17th, 2008 at 4:34 pm
We respond here: http://johnnycalifornia.com/?p=1938
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As Audre Lorde said, “The master’s tools will never dismantle the master’s house”.
We need NEW tools. WE have the intelligence, compassion, and fortitude to craft these tools. What is so wrong with REAL CHANGE; REVOLUTIONARY CHANGE? Why the intransigent desire to cling to an outmoded legal term; marriage? In this society, by its very definition, marriage (a union of a man and a woman), is an under inclusive legal term for use in a country that strives to ensure due process and equal protection to all similarly situated persons under the law. The term civil union most accurately describes the socio/political construct of a state sanctioned union. It is all inclusive in that it can pertain to both heterosexual and homosexual couples.
I can not disregard my neighbor’s SINCERE belief that if they condone “gay or same-sex marriage” they are condeming their souls to Hell. I can not disregard the fact that if my life partner gets a job in another state, we can’t move there if the state doesn’t legally recognize OUR union. This is why Federal Civil Unions for all legislation is a USEFUL new tool.
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Omar Reply:
March 14th, 2009 at 6:50 pm
This homo sapiens is right. The plan to implement this is easy:
1. Get civil unions for both same and different sex couples approved in all the states.
2. Demand recognizion at the federal level.
3. Start getting more rights, immigration, benefits, etc…
This should happen letting marriage the way it is. Also this unions should not assume, presume or require sexual cohabitation between the members.
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Why must it always come down to it’s easier to let Gays get married. From reading your article and seeing everything it would take to get the legislation passed in Congress. Which I have said over and over until my face is blue and my tongue is tired. Is the only solution to this I can see. I have to disagree, I think the Civil Union would be easier for non-traditional marriages, and leave the traditional marriages as they are.
Of course, Civil Unions with all the rights of traditionally married couples would only be acceptable, but I think it’s do able.
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Omar Reply:
March 14th, 2009 at 6:57 pm
This is perfectly doable, however it needs to be done gradually.
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