Another Myth Dispelled

October 30, 2008

submitted by greg:

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.


  1. Wow, this is powerful information. Thank you for posting it!

  2. This response is accurate, but it proves too much. It shows why gay-marriage proponents, and those that support them, will try to repeal DOMA, so that all Federal marriage benefits will apply to state-recognized same-sex marriages. So Proposition 8 is only a phase in the controversy over same-sex marriage issues. If DOMA is repealed, same-sexers will argue that the US Constitution’s full faith and credit clause will compel all states to recognize any same-sex “marriage” performed in any other state. If that argument prevails (and I haven’t researched it), the barrier to same-sex marriage will fall to the lowest common denominator; even if Prop 8 is passed it might be trumped by the US constitution or federal law.

    What we need is a way to recognize perceived “fundamental rights” of gays without changing the definition of marriage, so that all can feel they are being treated fairly.

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