Prop. 8: Some further Thoughts on Equality by Civil Union; Leave Marriage to Religion

Slate's blog on legal issues.
Nov. 16 2008 1:44 AM

Prop. 8: Some further Thoughts on Equality by Civil Union; Leave Marriage to Religion

In an essay published Friday in the San Francisco Chronicle,  I proposed that the way to settle the Prop.8 lawsuit was for California to withdraw from the marriage business, substituting civil unions prospectively for gay and straight alike.  The commentary has received many favorable comments, but also several people have posed a number of practical difficulties.  In an effort to answer them, here are just a couple of additional comments to consider:

1.        The Governor has an obligation to ensure that the laws of the state are evenhandedly applied; in light of the California Supreme Court holding that sexual orientation is a suspect class, that obligation arguably includes construing the California family code, including any undefined term such as "spouse" in the Registered Domestic Partner (RDP) statute as well as any of the other general family code provisions articulating the importance or significance of the family in a way that does not differentiate on the basis of sexual orientation;

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2.        It is well settled in the case precedent of the federal and state courts that equality can be ensured by either granting a new right to the deprived class or withdrawing an existing one from a favored one.   Thus, equality can be provided either by extending marriage to same-sex couples (this path is, of course, blocked by proposition 8, itself) or withdrawing, prospectively, from "marriage" licensing   altogether;

3.        Even if the Governor took the most conservative view of his administrative, regulatory authority and found the existing family code insufficient to issue such regulations, at a minimum, the Governor could propose the "civil union for all" idea as a remedial option for the California court to consider through the Attorney General who is required to give his views in briefing; the remedial power of the court to construe existing code provisions is arguably more expansive than the Governor's administrative authority alone; you'll remember that both the Vermont and Massachusetts courts gave the legislature a period of time in which to enact appropriate legislation to bring their respective states into compliance with the equal protection holdings in favor of same-sex couples in those states;

4.        Y es, it's true, state civil unions would not confer any federal marriage rights so long as the Defense of Marriage Act (DOMA) was in place; but a California marriage license issued to a same-sex couples would have been equally ineffective to convey federal rights; if federal rights are to be provided, DOMA will need to be modified or repealed;

5.        T he establishment clause problem is capable of being addressed in the drafting of either administrative regulation or legislation; specifically, regulation and then any confirmatory or validating legislation would provide   that going forward civil union status   within the state of California substitutes for the past practice of marital licensing issued under the family code;

6.        What then is the value of a religiously granted marriage license? the marriage bond and any certificate issued by religious organizations governs status only within the church community; it would have no operative effect in the state or federal secular systems;   yet, most people of faith view the preservation of religious freedom to be the heart of the matter.  In short, for those of us who believe that marriage is a status authored by God Himself,   this is not insignificant even as it has no temporal effect on medicare or other benefits; importantly, separating state granted civil union from religiously granted marriage does avoid the encroachment by the state on private religious belief that was occasioned by the California Supreme Court decision without proposition 8; so too, the proposed separation of function   also avoids the imposition of religious belief upon nonbelievers that is implicit in the passage of proposition 8.

Again, thank you for the many thoughtful comments on the civil union compromise.   Hopefully, these additional thoughts suggest that the proposal earlier outlined is more tenable than perhaps first thought.   In any event, by both these thoughts and those offered initially, I hope do convey the importance of demonstrating respect for the dignity of all Californians and the continuing importance of observing religious freedom in ways that proposition 8 did not successfully address.

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