Douglas Kmeic agrees with me
Conservative professor (and former Reagan and G.H.W. Bush Justice Department appointee) Douglas Kmeic suggests that California should move swiftly to resolve the Prop. 8 issue by eliminating California state "marriages" and instead implementing "civil unions" for all and sundry:
The governor told CNN that he hoped the state Supreme Court would overturn the people and Prop. 8. While there are some respectable legal arguments that the initiative does not meet the requirements of Article 18 of the state constitution, asking the court to invalidate Prop. 8 is a tall order. Properly, judges look for ways to avoid holding laws unconstitutional, and that is especially so when the law comes directly from the people.
All that said, the case is too close to call because Prop. 8 did not directly address the portion of the state Supreme Court decision that declared sexual orientation to be a suspect classification requiring compelling justification and because there is federal precedent that decries singling out any vulnerable group for legal disadvantage. In short, neither side can be confident of victory, and that is the best kind of case for settlement.
The governor should break the tie and free the judges from having to either set aside democracy or to uphold the decision of the people in a way that the governor and others would perceive as unequal treatment among his fellow Californians.
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.