Douglas W. Kmiec, a high profile lawyer in the Reagan and Poppy Bush administrations, lays out what he thinks is the solution to this gay marriage mess.
Essentially, get the government out of the business of religious marriage, and instead create civil unions for all that are legally recognized by the government. That way you have a clear separation of church and state.
Kmiec makes the point within the framework of California’s Prop 8 debacle and tells us what Schwarzenegger should do…
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.
Folks, this is the way we can fix this and I hope if California pulls it off, other states will follow. It makes no sense why government is involved with religious marriage, and the sooner we move towards civil union as the legal framework, the better.
This entry was posted on Thursday, November 20th, 2008 and is filed under California, Law, Marriage, Religion, Sexuality, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.