Douglas Kmeic Says Governor Could Make Change Through Administrative Order
But Is the Compromise Fair --- Or Even Necessary?
By Jon Ponder on 11/21/2008, 12:01pm PT  

Guest blogged by Jon Ponder, Pensito Review.

The California Supreme court announced Wednesday 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.

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 "equal protection clause," a foundational principle that instructs government to guarantee that all citizens enjoy the same rights --- or whether a change to the equal protection clause should have been made through the constitutional "revision" process, which 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.