Monday, March 16, 2009

ADF senior counsel Jordan Lorence and Columbia Law School Profesor Katherine M. Franke on the California Domestic Partnership Initiative

03/13/09 Focus on the Family

Two college students hope to qualify the California Domestic Partnership Initiative for the 2010 ballot by collecting enough voter signatures on a petition they are circulating for that purpose. The San Francisco Chronicle reports that their undertaking is "unlikely to get immediate backing from established gay rights groups, which are awaiting a decision in several legal challenges to Proposition 8 before deciding whether to ask voters to overturn the measure." Nevertheless, Alliance Defense Fund Senior Counsel Jordan Lorence tells that such groups favor the proposed Initiative:

"It's sort of like, 'If we can't redefine marriage to include same-sex couples, then we're going to wreck it for everybody,'" Lorence Said.

03/16/09 Gender & Sexuality Law Blog:

Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She thinks that the proposed Initiative "is a great idea," even though she prefers legislative reform, along the lines of a similar proposal by Pepperdine University law Professors Douglas Kmiec and Shelley Rox Saxer. But she also finds that the proposed Intitiative "will surely garner opposition from marriage fundamentalists both within and outside the lgbt community."

Franke views the Initiative as an example of what she calls "disestablishing marriage." She means "disestablishment of marriage as a state-sponsored institution." Unfortunately, that characterization initially appears at odds with her purpose. Under the idea that she, Kmiec and Saxer favor, marriage would not be literally disestablished; rather, the institution would no longer remain a civil institution. As far as I can tell, she does not use "disestablished" in the sense of "withdrawal of state support from an exclusively religious institution," as Kmiec and Saxer might do if they found "marriage disestablishment" helpful. Franke appears to favor withdrawal of state support from an institution whose defining normative values the state should not recognize. That idea looks nothing like disestablishment along the lines of separation of church and state. Franke complains that In re Marriage Cases, 43 Cal. 4th 757 (2008), allegedly precludes her "state withdrawal" position by making marriage a fundamental right. But constitutions and laws generally reflect cultural norms, sometimes quite unwisely. So perhaps Franke will also offer a compelling argument for her view, or at least one more compelling than that it represents a strategic advantage over waiting a generation for federal and state constitutions to guarantee equal protection to the right to marry?

Source: 03/16/09 ADF Alliance Alert

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