06/16/09 Los Angeles Times:
In this opinion article, Pepperdine University law professor Douglas Kmiec offers a provocative remedy to the controversy over Prop. 8. He recommends filing a state court action to challenge the California Supreme Court's holding, under Strauss v. Horton, that the state has a duty to treat gay and straight same-sex couples equally with respect to the rights and duties of marriage, even though same-sex couples can not obtain marriage licenses. Attorney General Jerry Brown could claim that to fulfil the full promise of equality, the Court must allow a different remedy:
The attorney general, in defending the state's interest, could ask for a court order enjoining the state from using the terminology of marriage altogether. Instead, the state would give everyone -- gay or straight -- a civil union license and allow churches, synagogues, temples and mosques to say who can and cannot "marry" within their individual traditions. Religious freedom, a bedrock constitutional value of like importance to equality, would also be a winner.
During the oral arguments in Strauss, Justice Ming Chin asked Kenneth Starr whether the Court could order just the remedy Kmiec favors. Starr answered that the Court should defer to the state legislature - an answer that Chin must have expected and appeared to welcome. So why does Kmiec think his strategy would work?
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