Kmiec was recently interviewed by the Economist, about six Big Questions. The interview is well worth reading overall, but I am (predictably) going to focus on one of his answers:
Question: You've argued that the state of California ought to get itself out of the business of overseeing marriage. But at the same time, you maintain that "the state has an interest in officially recognising some relationships just to ensure that society is well organised". By what sort of standards should the state decide which relationships to sanction?
Mr Kmiec: As I see it the state has an obligation to observe both equality and religious freedom. It cannot do both if it disavows its finding that sexual orientation is a suspect classification or presumes to perform an act that should be reserved for religious congregations–namely, marry two people in the sight of God in accordance with whatever doctrinal teaching the couple’s voluntarily-chosen church, synagogue, mosque, or temple observes.
This incompatibility became even more obvious when the people of California passed proposition 8, restricting marriage to opposite-sex couples. In a case pending before the California Supreme Court, it was conceded by the measure's advocate that it was not aimed at depriving gay and lesbian citizens of equal rights and benefits, which the state Assembly had already provided to them in statute. That concession seemed unavoidable, especially given the status of sexual orientation as suspect. So the effect of proposition 8–assuming it is upheld as a valid amendment–is solely to make the nomenclature of marriage available only to one class of citizens–heterosexuals. Since the state has the primary obligation of equality for all, the effect of the proposition is to direct the state to issue a license by a name other than marriage to all couples–gay or straight–who apply. The concept of marriage, of course, is then fully remitted to religious bodies who can indulge same-sex marriage within their respective religious communities or not in accord with the religion’s doctrine.
Now, I hadn't even considered that the Court would find this way out: that if Prop8 applied, NO ONE gets the title "marriage" for their state-sanctioned union. Of course, many folks (me included) have said that this is the most sensible answer to separate church from state, a solution used in Europe. But to even think that SCoCal would, could do it? ....oh my. I'd love to see the Other Side hoist on this petard.
Aw, well. It'll never happen.
3 comments:
Now, I hadn't even considered that the Court would find this way out: that if Prop8 applied, NO ONE gets the title "marriage" for their state-sanctioned unionDon't be so sure. They actually sent up a signal flare that that was what would have to be done, in their May 15th decision of last year. They said "We can either give same-sex couples access to marriage, or we can set up some entirely new institution that includes all couples and stop allowing marriage at all," essentially. So I think they will do it, if they uphold Prop 8, and if so, you'll see a repeal effort so fast it'll make your head spin.
I'm hoping they won't uphold it, though. If they do, it sets a very dangerous precedent.
I remember a hint of this possibility, that, since only doublesex marriages would be recognized and that would be a conflict with equal protection, the solution would be no "marriage", but everybody getting domestic partnership. Although many earnest people have called for the elimination of the discriminatory institution, have, in other words, taken seriously the wingnuts clutching at the word "marriage", it seems to me taking away the word "marriage" would make far more people angry than would equalizing it. I hear people cry out that marriage-is-between-a-man-and-a-woman but I don't really believe them. What they're really saying is I-fear-gays-make-em-go-away. Ripping away the word "marriage" will not assuage anyone's fear of gay people; it will scare people even more.
Sadly, Glenn, that's why I think it's unlikely, though legally justifiable. But for an attorney like Kmiec, who is pure conservative, to suggest it, I find quite intriguing even if in a purely political sense.
But I anticipate that we'll ahve to win this one the hard way, at the ballot box. And given what happened before, this will be a vicious, hard battle.
(Incidentally no decision tomorrow, either--next possible day, is next Monday.)
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