Obscanity: You'll know it when you see it

I have no idea who you are. I stumbled onto your blog from a link from CNN’s “Catholics, Mormons defend backing same-sex marriage ban” article. But I feel terribly for you.

I’m straight, but I have friends and family who are gay. And I felt absolutely heartbroken for them on 11/4 as I watched the poll results, and the gap didn’t shrink enough throughout the night like I’d hoped it would. I had such mixed emotions that night. Joy and pride that Obama had won, and disappointment and shame that Prop 8 supporters had too.

As an atheist, I know I’m probably on the top of people’s hate lists as well. If so many people believe that marriage is a sacred union, and they can justify imposing that “sacredness” onto others, then what’s to stop them from targeting atheists next? How could my marriage (if I ever did get married) ever mean anything if I don’t believe in God? Wouldn’t it be a threat to their traditions as well? What’s to stop people from coming after my rights next?

Anyway, just wanted to let you know that a stranger read your blog and shared your disappointment.

Charlene, thank you so much for your note. I was so glad that I got a few hours to bask in Obama’s victory before the results of Prop 8 came in. It was SO amazing to be among my LGBT brethren when he gave his acceptance speech – absolutely inspiring, and so much hope and joy in the air. And yet, we had such a devastating disappointment later in the night.

I so appreciate that people from around the country are watching us here in CA and feeling this disappointment and anger over what happened. This wasn’t just a loss for gay people. It was a loss for all Americans, because nobody is fully protected unless we are all protected, and the idea that a simple majority could strip a suspect class of its fundamental right to marry is just appalling. It really does make me worry about who could be next. Will they target atheists? Will they target people with Arabic names? Will they go after nonwhite people in general? Old people? Disabled people? If they’re going to make this about procreation, will they start issuing marriage licenses based on whether people have “good” genes? Who knows? What I do know is that this sets a dangerous precedent and I hope the Court realizes that when it makes its decision.

Thank you so much for your support.

Whoa, I’m so confused by the things you say, because you show such a clear misunderstanding of the facts. Where did you come up with the idea that common law marriage has *anything* to do with domestic partnership? Common law marriage was outlawed in California YEARS ago. YEARS AND YEARS AGO. California has been a statutory marriage state for a very long time, and this has nothing to do with domestic partnership.

But even if it did, why should you be entitled to rights simply by living together when you have *chosen* not to get married to that very same person? You HAVE the right and yet have chosen not to exercise it. We deserve domestic partnership because we do not have the choice to marry instead. You made a choice that we did not have available to us.

Wow. I hope to god your kids do not realize they are gay (they don’t decide – your language shows your bias). You may not be bothered by your vote, but I can guarantee you that they will be bothered by it. I would never, ever be able to forgive my parents if I found out that they voted yes on 8. Never.

And honestly, I really don’t give a shit if you think it is a choice, because you don’t know. You can never truly know because you are not gay. I mean, yeah, I could make a choice to deny the truth and “marry” a man, but it would never be a real marriage, and any sexual intercourse that occurred would be nothing less than rape, because I would never, ever consent to sex with a man. Would you? Would you voluntarily have sex with somebody of the same gender? Would you make that choice? I sincerely doubt it – because my guess is that you are straight. So why should I be expected to make that choice just because I am not straight? It is disgusting and unnatural to me. How would you feel if you had that forced upon you?

Um, Iron_queen, I hate to break it to you, but common law marriage has been invalid in California since 1895. Not 1985, but EIGHTEEN NINETY-FIVE. That’s more than a CENTURY. You may have *thought* you were living in a common-law marriage, but you were not.

When you and your boyfriend get married, that’s when you’ll have rights. And your marriage license will say bride and groom. That hasn’t been taken away from you. But until you get married to the person you’ve chosen, why on earth should you expect the rights and responsibilities of marriage? You have marriage available to you. It seems like you’re asking to have your pick of two different institutions, while I only have access to one.

(That said, once same-gender marriage is legal again here in CA, I do not believe that gay people should be able to enter domestic partnership in CA unless they also get married at the same time, and the in-state rights should stem from the marriage, not the DP, since otherwise that would be unfair to straight couples who choose not to get married. The reason gay people had access to both institutions for the past six months had to do with specific other states that only recognize DP for same-gender couples, but not marriage.)

The difference between you and your boyfriend and me and my wife is that the MINUTE you found out there was any question about your marriage, you could have gone down and gotten a marriage license. Your ignorance of the law doesn’t mean the law doesn’t still apply to you. You may have been receiving benefits you were not entitled to, because you were holding yourself out as married. I don’t believe that gay couples who haven’t entered into domestic partnership contracts should be able to receive benefits – so why should you receive benefits when you haven’t availed yourself of your rights?

You may be talking about county domestic partnership registries, in which case we’re talking about a completely different issue. You were never married at the common law. That was illegal, and you may have misunderstood the law. Your county may have had its own domestic partnership registry but it did not extend to all of the rights of marriage at the state level – most likely it affected hospital visitation and rent control, or maybe county employee benefits. The county does not have the ability to define what marriage means – if it did, SF would have been allowing gay marriage for decades now. That power stems from the state, and it was the state that redefined domestic partnership. You never had full marriage rights, even if you thought you did. In fact, it wasn’t until 2005 that domestic partners even had full equivalency of marriage. Prior to that, it was very, very basic. But again, the minute the law changed regarding county domestic partner registries (and I must stress again that these were NOT marriages or anything even CLOSE to it), you could have fixed everything by getting a marriage license. YOU chose not to do that.

And it’s actually not true that domestic partnership affords the same rights as marriage, even now. You may think you know, but I am actually *in* a domestic partnership – and married – so I think I have a better sense of the difference.

If you and your boyfriend want to be legally recognized, then GET MARRIED to each other. You have that right. Why should you get rights *without* getting married? We’re not asking for anything more than you have.

Your rights *are* protected. You said yourself that you wanted to be married in a traditional marriage. You have that right. You never lost the right to be married in a traditional marriage, as husband and wife, so long as you actually go get a marriage license.

My knowledge of marriage law has nothing to do with being gay. I’ve been through three years of law school, have worked in family law offices, and have studied family law. Show me the “websites” that say a common law marriage could be created in the state of California as late as the 1990’s, when domestic partnership was created. I’ll show you the LAW, where it says it could not.

From Elden v. Sheldon, 46 Cal. 3d 267 (1988)
“This policy in favor of formal marriage was expressed in the abolition of common law marriage in 1895 (see Estate of Abate (1958) 166 Cal.App.2d 282, 292 [333 P.2d 200]; Norman v. Thomson (1898) 121 Cal. 620, 628 [54 P. 143]), and it has been reaffirmed in numerous cases since that time (see, e.g., Ledger, supra, 164 Cal.App.3d 625, 636; Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 9 [192 Cal.Rptr. 134, 663 P.2d 904]; Deyoe v. Superior Court (1903) 140 Cal. 476, 482 [74 P. 28]). 5”

It is true that one particular statute was written much later, at the same time as domestic partnership laws – but that statute (A.B. 2650, operative Jan. 1, 1994, is probably the one you’re thinking of) basically just repealed all prior family law acts and recoded them as the California Family Code. CA law already did not recognize common law marriage; the 1990’s statute just reiterated this in a different section of the code.

If it was contracted out of state, that is another question, but a common law marriage could not be contracted in this state, at least not in the past 100+ years. If the law itself doesn’t convince you of the law, I don’t know what will. Perhaps a website. Or another website. But I’ll tell you, if I was a judge, I would rely a lot more heavily on past case law than I would on random websites.

So educate me – why would a straight couple not be married, but still expect to have the rights of marriage?