Marriage for all or marriage for no one? Doug Kmiec, who signed onto more than one amicus brief urging courts around the country to uphold marriage as the union of one man and one woman, co-authored an op-ed recently with a new, evolved position: Ken Starr is wrong to try to uphold Prop. 8; instead, we should get government out of the marriage business. (Admittedly, it’s a little legally incoherent for the same man to say the court should NOT have struck down Prop. 8 in the first place and then say Starr is WRONG to defend the constitutional rights of Californians to amend their own constitution but, hey, let’s not get distracted.)
Justice Chin actually pointed to Kmiec’s op-ed and raised the issue with lawyers on both sides of Prop. 8 during yesterday’s oral arguments: Would civil unions for all satisfy the equal protection clause? If so, could the court order it? Starr said it would satisfy equal protection but would be a tragedy for society because marriage (as we’ve traditionally understood it) serves important purposes. The anti-Prop. 8 lawyers said, sure yes, marriage for no one would be an acceptable outcome if Prop. 8 were not overrruled.
Note: Conceptually, wouldn’t it be a little odd for a court that just redefined marriage in order to comply with a fundamental human right to same-sex marriage to conclude it has the power to take marriage away from the 15 million or so married Californians? Of what does the fundamental human right to marry consist? (This is a harder question to answer than one might imagine, either from the traditional or the liberal side.)
But today the LA Times weighed in with an editorial endorsing the idea as worthy of further discussion. Any takers?