GOP Obama Supporter Proposes Prop 8 Compromise: Civil Unions for All, Leave ‘Marriage’ to Churches

The California Supreme court announced yesterday that it will hear arguments challenging the constitutionality of Proposition 8, the anti-gay amendment that overturned the right of gay people to marry in the state.
The Prop 8 debacle could be resolved by limiting the state of California prospectively to the issuance of civil unions for all couples, rather than marriage licenses, leaving marriage to the churches.
– Kmeic

In May, the same court, which is composed of seven Republicans and one Democrat — who are all elected for 12-year terms — decided 4-3 to strike down a law banning same-sex marriage.

The judges are being asked now to decide whether the constitution can be amended to make discrimination against a minority group legal, a move that directly violates the constitution’s foundational principle of providing protection of rights equally to all residents — or whether a change of that magnitude should have been made through the constitutional “revision” process instead. A revision to the constitution would have required a two-thirds vote by both houses of the legislature before going before the electorate as a ballot initiative.

In a recent San Francisco Chronicle op-ed, Pepperdine law professor Douglas Kmeic, who served as a high official in the Reagan and Bush I Justice departments but who supported Barack Obama this year, laid out a compromise to the constitutional debacle brought on by the passage of Proposition 8 that puts the solution in the hands of California’s governor:

Gov. Arnold Schwarzenegger may well be a proximate cause of this breakdown … the Prop. 8 case should be settled, and there’s no one better to do it than our governor.

After all, the governor has been on both sides of the same-sex marriage issue. Twice the governor was against gay marriage and twice the governor was for it.

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.

To convince both sides to come to the table, the governor’s ruling should:

— Eliminate any doubt as to the validity of same-sex marriages undertaken between the time of the Supreme Court’s judgment and the effective date of Prop. 8. This is only fair because the proposition did not clearly state that it would be retroactive. People are entitled to have confidence in the law as it exists today without having to anticipate how it might change.

— Reaffirm the unfettered freedom of religions (not the state) to be either in favor or opposition to same-sex marriage as their doctrine teaches.

Is this perfect? No. Better than waiting for the outcome of an uncertain case? Yes.

Respectful of the dignity and equality of gay and straight citizen alike? It is intended to be so.

Mindful of the tradition of religious freedom? I think it is.

As Kmeic noted, Schwarzenegger could have prevented this entire debacle by not vetoing the legislation passed twice by both houses of the legislature that made gay marriage legal.

So what are the chances Schwarzenegger would act on Kmeic’s proposal? His approval ratings are down into George Bush territory, around 34 percent. He is term-limited out of running for re-election, and it is doubtful he’ll run against Sen. Barbara Boxer in 2010, if for no other reason than the fact that he is temperamentally unsuited for the U.S. Senate. In short, Gov. Schwarzenegger’s political career is coming to an end, and he has very little to show for it, so swooping in to save the day would appear to be a good career move. On the other hand, he has already whiffed on two chances to go down in history as the man who resolved this landmark civil rights case, so there’s no reason to think he’ll take this back-door approach.

And there is the additional issue of whether he should. Is converting all marriages in California to civil unions fair? Would these new universal civil unions be a separate but equal class from existing “traditional” marriages?

Beyond fairness, is the Kmeic compromise even necessary? Prop 8 clearly violates the equal protection clause by amending the Constitution to restrict the rights of a minority group. As such, it should have started its path into law in the legislature as a constitutional revision, not as an initiative before voters. The chances are arguably better than even that the California Supreme Court will overturn Prop 8, if not on the merits then on procedural grounds.

Meanwhile, anti-gay activists are threatening to recall California Supremes who vote to overturn Proposition 8. As noted, the court is dominated seven-to-one by Republicans, so a recall could target at least three GOP judges. Given the decidedly leftward trend among the California electorate since 1992, it is unlikely the recall would pass, but if it did, the vacancies could well be filled by Democrats.


  • Chris
    November 21, 2008 - 2:51 am | Permalink

    Prop 8 along with all other legislation in regards to preventing same-sex marriages are not only in violation of California’s equal protection clause, they are alos in clear violation of Amendment 14 of the U.S. Constitution.

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    When this proposition is hopefully over-ruled it will be in adherence to both state and federal law…

    Whether or not you agree with gay marriage or not, Prop 8 is discriminatory and violates the core principles that our country was founded upon.

  • Madison
    November 21, 2008 - 6:33 am | Permalink

    It is not unusual for propositions to be overturned, David. The infamous Prop 187, the Republicans’ anti-immigrant initiative that would have expelled school children from schools and prevented sick people from receiving medical treatment, won by 68 percent but was then overturned in court.

    Christians who put their religion above the rule of law may think of themselves as good Christians but they are fundamentally un-American.

    Personally, I think God is on the side of gays in this fight. Prop 8 won because of hate, and God hates hate.

  • Max
    November 21, 2008 - 4:48 pm | Permalink

    what no on 8 has been doing after the election is hate some people call it hating.

  • November 21, 2008 - 5:06 pm | Permalink

    Yeah, the same kind of hating blacks did when whites stood in the way of their equality, that women did when they were prevented from voting, and that young people did in the sixties to try to stop the war. Being nice to your oppressors hardly ever works, Max.

    Honestly, don’t Prop 8 supporters feel any responsibility for their own failing here? You guys should have seen this coming. It’s obvious you had no clue what Prop 8 actually said, and didn’t bother to look it up, so you were duped by the Yes on 8 people who used you as a weapon in their hate campaign against gays. Voting is a right and a responsibility. It’s not a game.

    The only real surprise to me is the gall of the Mormons who apparently think they can spend $20 million to squash other people’s rights — not to mention their dreams and chances for happiness — but then are somehow immune from repercussions or even criticism.

    Welcome to the real world.

  • Max
    November 21, 2008 - 7:28 pm | Permalink

    The real world, a shameful world. Blacks are born black, women are born women. I know many many many gay people who didn’t know they were gay until later on in their life. I have known many of those gay people later on turn around and say, well I am not gay after all. You can live your life without sex from another person, yeah it stinks but it is possible. You can live without intimacy or even an emotional relationship with others, yeah that would really stink but it is possible. But your skin color, or your gender, that is something that you are true blue born with and cannot change. Sure there is now scientific intervention that can do whatever in the world you want it to, but blacks and women and even men, are born with an identity. Most people do not know any kind of sexual preferance untill they are older. That is the real world Jon. That is why they fought and pushed. All people should have rights, but not at the expense of other. You are not comparable to blacks or womens rights. You may have rights but stop comparing yourself with those who suffered because they couldn’t keep their race or gender. Persecution is real, yes the gay community faces persecution too but this is different.

  • Kira
    November 22, 2008 - 1:13 am | Permalink

    Max says:
    All people should have rights, but not at the expense of other.

    That’s just nutty. Just what are you trying to say? Allowing same sex marriage will cause zero expense to others.

    The government should STAY OUT of peoples’ bedrooms [that includes yours, Max.]

    If we allow the gov’t to make laws restricting the rights of minorities based on the Bible – we are no different from the fundamentalist Taliban. That’s what a Theocracy is. You should think about it.

  • Kira
    November 22, 2008 - 1:23 am | Permalink

    Does common law marriage not apply to same sex partners?

    If not, why not?

  • Kira
    November 22, 2008 - 1:37 am | Permalink

    That’s probably a stupid comment re: common law marriage. It’s late & I’m tired.

    Just thought I’d say that I am a Christian, hetero, married woman in my 50s and have had many gay friends I adored. Most of them have died now and I miss them terribly. I was fortunate because I learned a lot from each of them – those friendships made me a much better person.

    Just FYI – not one ever tried to convert me or anyone else I ever saw them interact with. They were private about their intimacy – just as most of my straight friends are.

  • Kira
    November 22, 2008 - 2:16 am | Permalink

    And one more thing … I never used to think of my gay friends as “gay friends.” They were in my collection of FRIENDS. If people would stop labeling other people as Gay or Black etc. and just see the person – oh what a wonderful world it would be.

  • Max
    November 22, 2008 - 3:47 am | Permalink

    yeah it would be a nice world if there were no labels like gay or black or mormon or homophobic.

  • November 22, 2008 - 7:13 am | Permalink

    Max, people do not, and cannot, choose their sexuality. Did you?? If so, tell us about making that choice. If you did not — could not — choose your sexuality, why would you think others can?

    People are born with their sexuality innate. Later they grow up to be straight, gay or bisexual. (And, yes, some people mature later than others, but so what?) Alfred Kinsey, the pioneering sex researcher, believed that most people are sexually attracted, to a great degree or small, to members of both sexes. If you know people whose sexuality appeared to change over time, they are bisexual. Straight people can’t become gay, gay people can’t become straight, and bisexuals can’t change their bisexuality.

    But people choose to be Mormons. When Mormons or Christians look at a world full of sinners and single out one group for judgment and persecution — gay people — over other equally or more hellbound sinners like adulterers and fornicators, that is bigotry. When Mormons choose to act like bigots, they open themselves up to be labeled as such.

    Mormons and Christians don’t object to the fact that adulterers enjoy the full range of civil rights, even though adultery, unlike gay marriage, really does destroy “traditional” marriages and families. Adulterers are free to be preachers, teachers and politicians, and to serve in the military. These homewreckers are also free to remarry. And yet we don’t see Christians putting up ballot measures to revoke their civil rights, nor do we see Mormons donating millions of dollars against adulterers’ rights.

    The persecution of gays by Mormons and Christians is not really about morality. It’s about bigotry and a healthy dollop or two internalized homophobia. Using the Bible as a rationale for this is hypocritical and phony. It just doesn’t wash in rational society.

    And finally — how dare you say our struggle for civil rights is not valid. My rights are as precious as yours or anyone’s. What this says is you view gay people as second-class citizens, as unworthy and less than you. There’s a word for that.

  • Max
    November 22, 2008 - 4:42 pm | Permalink

    Jon, I understand how sensative a subject this is for you so I hope my words do not come across as offensive.
    There actually has been no scientific proof that homosexuality is something you are born with. There has been a lot of great research done and a lot of walls that have been climbed but there has been no actual proof. I in fact do know many people who have changed their sexuality because of choice. My friends who were gay who changed their sexuality (and by the way, were not christian) have changed their sexuality when they realized they had a choice. For many it was hard, for some it was easy. A lot of them changed their mind when they decided that they wanted to create a child with their spouse. They of course loved sex but for them having sex without ever having the possibility of children was hard to swallow.
    There was also a psychologist on the oprah show a few years back who said he could help gay men become straight. 9 out of 10 men he helped became straight. He was also once gay and found that he had a choice.

  • Max
    November 22, 2008 - 7:13 pm | Permalink

    Actually jon to correct you, I did not say that gay should not have rights, I said it is not comparable. Don’t put words in my mouth jon. You can dispute what I say I don’t care, but don’t twist my words.

  • November 23, 2008 - 7:01 am | Permalink

    The guy you’re talking about who went on Oprah was John Paulk. A couple of years after the show, he was going to gay bars again.

    Legitimate research into “reparative therapy” has found that not only does it not work, it is often harmful. It is sad that its victims are so tortured by needless guilt. Homosexuality is not a disease, so it can’t be “cured.” It is not immoral in the rational world. There is nothing wrong with being gay. It’s just a flavor of nature.

    Think about it from another angle. Why would anyone choose to be part of a hated minority? Every closeted person wishes he or she could flip a switch and become straight. If they could, they would.

    But Max, saying gay civil rights are not “comparable” to the rights of women or African-Americans or anyone is literally saying that gays are second class citizens — that even though we may have born here and we pay the same taxes as you, we don’t deserve what you’ve got. That is discrimination, and it is un-American.

  • November 23, 2008 - 10:21 am | Permalink

    Dear editor: I ask you permission to translate this article into Spanish and post it in my blog: This information is of great interest to my visitors, many of which do not read English. Should you grant permission I will link the post to this page of yours.

    Thanks for your attention.

  • Kira
    November 23, 2008 - 1:15 pm | Permalink
  • Kira
    November 23, 2008 - 3:39 pm | Permalink

    I find it hard to believe someone knows so many homosexuals who have “changed.” If it’s true – they were probably people who were experimenting with their sexuality.

    And we can see there is a certain percentage of the population that masquerades as something they are not – for whatever reason.

    That phenomena will continue whether the LGBT community gains the right to marry or not.

    Truly, if Christ came back today, he would be horrified by those who are using HIS NAME to define their religion while going against HIS teachings.

    Bush [the religious right] Plays Christians for Suckers Yet Again

    …A constitutional amendment banning gay marriage…is not one of the pressing issues of our time. Prohibiting same-sex unions would have absolutely no effect on the state of traditional marriage. Britney Spears’, whose first marriage lasted less than a day has done much more to denigrate traditional marriage than gay couples have.

    Catholics worked this out a long time ago: If you wish to be married in the church, you must follow the teachings of the church. Otherwise, you can go to the courthouse, or you can find another church that suits your beliefs.

    What Dobson [focus on the family] and his followers are trying to impose is a Christian version of sharia religious law. That wouldn’t bode well for an Iraqi democracy, and it wouldn’t bode well for this democracy, either.

    “Wouldn’t bode well” indeed. It is deadly!

    That kind of political-religious power turns religious zeal into persecution and murder – as we have seen in American history, abundantly in European history, and in several Muslim countries in recent years.

    I am not over-reacting here; this IS in human nature, and it is very prevalent in human history. It is a good part of what the Founders and the Constitution were trying to protect us from.

  • Max
    November 24, 2008 - 8:09 am | Permalink

    I wanted to say thank you for your responses and I hope someday we can all come to a peace about this. Take care, jon. It has been good for me to talk with you. Goodbye.

  • November 24, 2008 - 2:45 pm | Permalink

    No justice, no peace, Max.

  • Max
    November 24, 2008 - 3:20 pm | Permalink

    jon you are really a weird guy. I will discourage my friends from getting onto this site. You are selfish and rude. I did leave with good feelings in my heart towards you but you just took those and smashed them into the ground. I feel sorry for you. Your joy is only temporary. Good grief.

  • November 24, 2008 - 6:16 pm | Permalink

    Let me get this straight, Max. You have said gay people are second-class citizens who don’t deserve rights straight people enjoy under our civil, non-theocratic government because God said says so, that homosexuality is a illness, that it is immoral, that the suffering of gays at the hands of others — including assumedly the thousands of gay men and women who were gassed in concentration camps by the Nazis, Mathew Shepherd who was tied to a fence and beaten to death in Wyoming, Ryan Skipper who was stabbed dozens of times and left to die on a dirt road in Florida, 13-year-old Larry King who was shot to death by a classmate in Oxnard, the Iranian teenagers who were beheaded on the public square last year or any of the thousands of men being raped in US prisons today, for example — that their persecution is not comparable with the persecution of blacks and women.

    But I hurt your feelings by saying that until there is justice on this issue there will be no peace between Americans who advocate for social justice and homophobic Mormons and Christians.

  • Max
    November 24, 2008 - 6:54 pm | Permalink

    Do you know how to read jon? I don’t think you do or else you would have gotten my ideas straight but that’s ok. There is no offense I just feel sorry for you. I do think you are rude, and don’t really think of anyone but you. Please go into a black church and tell them how much you can relate to their ancestors going through slavery. Not just one or two but thousands. If they didn’t die from being slaves it was a lynching or being slaughtered or being whipped to death or something worse. You are a human jon and therefore do deserve rights. If you could actually read you would know that I never said gays are second class citizens or that they shouldn’t have rights. That is just what you want to see from your bitter selfish biased point of view. There are many others types of people in the world than gays. But at least if you needed to or wanted to you could hide that. Try hiding the color of your skin. It’s too bad you are not more open to other peoples views and opinions. All you have done is shot down my opinions and those of my friends and others. No wonder prop 8 was passed. Those who might have sat on the fence with the gay community have now been pushed over to the other side, the yes on 8 side, because of the actions of no on 8 protesters. I am out. You don’t want to talk, you want to shoot down bash and destroy peoples standards morals and beliefs. Good bye jon. Have a good life, you like everyone else deserve one.

  • November 24, 2008 - 7:03 pm | Permalink

    The idea that you think gay people would/should want to hide who they are says it all.

    There is nothing wrong with being gay.

  • Max
    November 24, 2008 - 8:25 pm | Permalink

    Once again jon you have proven you can’t read. Or at least understand what I am really saying. This is ridiculous.

  • Dan
    February 10, 2009 - 3:16 pm | Permalink

    I can see alot of religious people being mad if their heterosexual marriage is called a civil union by the state. There was a news article a while back before prop 8 passed and the marriage licence form said party A and party B and there where people mad that their marriage licence didn’t say bride and groom. Add to this the confusion and legal complications that such as change would make, all to protect the word marriage form homosexuals. However since religion keeps the term marriage under this compromise and since there are religious denominations that are willing to marry same sex couples there would be gays and lesbians who would be bestode the status of married under this duel system of Civil Unions from the Gov’t and Marriage from religion. I doubt religious minded people would like that very much.

    Rather than turn the whole system upside down to try to keep the word marriage away from homosexuals people need to grow up and realize the difference between a civil marriage and a religious marriage. Civil marriage is what is at issue here is not religious marriage. In a secular society it is the civil marriage that bestows all rights, responsibilites, and benifits to the couple and this should be equal availabel to everyone gay or straight. Religious marriages are performed at the discrestion of the religious body in question, some of these groups will not marry gays because that is their belief, while some will. People do not need to fear that their church or priest will have to preform or bless same sex marriage. Even today certain religions will not marry people who are not a part of their religion or if one or both of the parties have had a previous marriage (ie. have had a devorce), despite the fact that it is perfectly legal for devorced people to marry or people with different religious backgrounds to marry. No one has forced these chruches to preform these ceremonies despite the fact that people seek a marriage where legal entitled to a civil marriage licence, the same will be true with same sex marriage.

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