A Prop. 8 win-win

Douglas W. Kmiec is a professor of constitutional law at Pepperdine University and the author of "Can a Catholic Support Him? Asking the Big Question about Barack Obama."

It is not often in life, or law practice for that matter, that you can say to two opposing parties: You both win. Yet the recent decision of the California Supreme Court upholding Proposition 8 as a valid state constitutional amendment could point the way to a solution that both supporters and opponents of same-sex marriage would embrace -- if we can stop all the shouting.

The shouting in this instance comes in the form of a lawsuit asking the federal courts to find Proposition 8 a violation of the U.S. Constitution. The duty to represent the state -- and hence to defend Proposition 8 itself -- falls to California Atty. Gen. Jerry Brown, who opposed the measure. Conflict of interest? No, says Brown, hierarchy of laws. His oath to uphold the U.S. Constitution trumps his responsibility to California.

In a legal brief filed last week, Brown made clear that he believes the same-sex couples who filed the suit are right in their assertion that Proposition 8 violates the 14th Amendment. Showing off his Jesuit training, Brown has seemingly found the “fingers-crossed” exception to enforcing the controversial proposition.

The gay couples could well win this legal battle because the U.S. Constitution, as construed in Romer vs. Evans and Lawrence vs. Texas, denies the validity of laws that have no purpose other than allowing a majority to express animus for homosexuals.


In truth, however, it would be better if the matter were resolved in state court. The state Supreme Court’s ruling in the case is as inconsistent as it is incomplete, and it leaves the door open for legal action. According to the court, “It is only the designation of marriage that has been removed by this initiative measure,” not the guarantee of equality.

But does holding that gay and traditional couples must be treated the same by the state -- even as gays can be denied the nomenclature of marriage -- make any sense? A further remedial decree is needed. You can’t go up and down in an elevator at the same time, and neither can gays be said to have equality when they are being treated unequally.

The federal action was brought on behalf of two gay couples who were denied marriage licenses after the ruling that upheld Proposition 8. If such an action were instead brought in state court, California would have an opportunity to bring equity to both sides. The attorney general, in defending the state’s interest, could ask for a court order enjoining the state from using the terminology of marriage altogether. Instead, the state would give everyone -- gay or straight -- a civil union license and allow churches, synagogues, temples and mosques to say who can and cannot “marry” within their individual traditions. Religious freedom, a bedrock constitutional value of like importance to equality, would also be a winner.

In its original decision legalizing same-sex marriage, the state high court established an obligation for the state to treat gays and straights equally. But it didn’t spell out what that finding would mean for religious bodies in their dealings with the state. In the initiative campaign, Proposition 8 proponents argued in commercials that religious bodies would be compelled to perform marriages contrary to religious doctrine. Religious schools and charities, the ads claimed, would be subject to vexatious litigation, and non-compliant religions would have their tax exemptions snatched.

Were those concerns overstated? Maybe, but putting aside homophobic ugliness that deserves no respect from the law, these religious fears cannot be dismissed, and they likely account for Proposition 8’s margin of victory. Having it bluntly invalidated by the feds would miss this point.

Both sides’ concerns could be resolved if a state court directed the Assembly to conform the Family Code to the Supreme Court’s affirmation of equality. All it would take is using the “find and replace” key on the computer to replace current references to “marriage” in government documents with the term “civil union.” This would provide equality to gay and straight couples before the law of the state and cede the marital terminology back to religious institutions.

The state constitutional protection for freedom of religion is likely adequate to ensure that religious institutions remain free to choose whether to marry same-sex couples or not, but it is prudent to add a paragraph or two to the state code to emphasize the point -- as the legislatures in Connecticut and Vermont have done. Need drafting help? Write me and I’ll send it.

Of course, the federal government by statute categorically denies all federal benefits to gay couples. This cannot be changed by California alone, but if we get our own marital house in order by our own wits without relying on federal intervention, we will have helped the cause of justice the best way we can -- by being a good example.