Below The Beltway

Douglas Kmiec, a law professor who worked in both the Reagan and Bush 41 Administrations, has a piece in today’s San Francisco Chronicle proposing a possible solution to the controversy over same-sex marriage in California:

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.

What Kmeic suggests is, essentially, that the State of California get out of the “marriage” business entirely and permit any couple, gay or straight, to register their self-declared union, which may or may not be consecrated in a religious ceremony, with the state.

I’ve said the same thing in the past on several occasions — see here, here, and here:

Get rid of civil marriage licenses entirely. Let people decide for themselves what they believe about marriage and let them, if they wish solemnize that union in a church of their choice. We are hundreds of years past the day where the state was involved in religious affairs, it doesn’t need to be involved in this matter either.

If you truly believe that marriage is the union of a man and woman before god, then what does the state have to do with so fundamentally a religious institution ? Why does the state need to recognize it at all and why does it need to grant that religious institution preferential benefits in the form of tax breaks and a protected legal status that is not available to unmarried persons ?

It doesn’t, of course, and the fact that it does is the reason that we’re having these battles over same-sex marriage, and while we will continue to do so until government gets out of the marriage business entirely.

H/T: Donklephant