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.
I have been saying this ever since the election results came in.
But I go further. I think the California courts, presented with a challenge to Prop. 8, if they find that Prop. 8 was lawfully enacted, are required to remove "marriage" as a valid state classification. The California Supreme Court was non-committal on whether "marriages" had to be offered, but simply said that if "marriage" was offered, it must be offered to all on a non-discriminatory basis. And as Prof. Kmeic points out, Prop. 8 did not amend -- nor did it purport to amend by its language -- California non-discrimination protections, it simply said that "[o]nly marriage between a man and a woman is valid or recognized in California." It did not say that such "marriages" must be recognised. To resolve the conflict of laws, if Prop. 8 is valid, and California may not discriminate on the basis of gender or sexual orientation, the only permissible solution is to remove "marriage" from California law.
Yet to be determined is whether the same-sex marriages performed before the passage of Prop. 8 are still valid as "marriages". But then, if they are no longer valid, then every other "marriage" in California must also be legally dissolved. ;-)