Friday, November 21, 2008

Domestic Partnership and the Incommensurability of Language

The State of California is widely acknowledged to have among the most expansive equal protection guarantees afforded to gay citizens in the country.

a Brookings Institution report concluded last May, following the California Supreme Court's ruling to overturn the state's ban on gay marriage:

California has a domestic partnership law, which grants same-sex couples virtually all of the rights and obligations of marriage, making the current dispute one of nomenclature over the use of the word "marriage," not about the substance of marriage rights.
Here is the language of Section 297.5. (a) of the California Family Code

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.
All along, the debate has been one of the social construction of rights and power. This a battle of interpretation and language. Andrew Sullivan noted yesterday that equal protection for domestic partners isn't enough ... he's determined to fight a war of discourse, beating tradition and reason into submission until he gets his way:

We live in a new world, and we can and should create meaning where we can, in civil society, in private, through free expression and self-empowerment. But we cannot enforce that old meaning on others by law. And we certainly cannot do so arbitrarily, to the sole detriment of only one group in society - homosexuals.
To read this is to see the postmodern language project in action. Sullivan's post is entitled, incommensurably, "Modernity, Faith, and Marriage."

The majoritarian acceptance of gay marriage will be a postmodern triumph, not a modern one. Sullivan should at least square his theories with prevailing modes of discourse.


Anonymous said...

is establishing a domestic partnership the same process as obtaining a marriage license in California? (if marriages are like they are here in Maine, it's as simple as paying a fee, filling out a form and having it notarized.) or are there additional barriers to domestic partnership?

and though the language you quote seems unequivocal, do employers, health providers, etc. recognize the distinction (or lack of distinction,) in terms of extending benefits and rights to domestic partners?

if there is no difference, if the system is in no way prejudiced, wouldn't it be more efficient to have a single state recognized instrument for every such union, whether it be called 'marriage' or 'domestic partnership'?

why is the distinction so important in the official legal language?