Response to proposal to substitute state recognition of marriage with state recognition of marriage's rights, benefits, and duties

03/11/09 National Review:

"Kmiec and the editors of the Times join a long series of activists who insist on framing the same-sex marriage debate as a clash between civil liberties and religion. But that’s not what it is. This debate is about the substantive differences between same-sex marriage and traditional marriage, whatever they are called. The question is whether the substance of the traditional institution should be endorsed both by voluntary associations (including houses of worship) and by the state as the ideal union of adults and the ideal environment for childbearing and childrearing."

Even if one concedes writer Ryan T. Anderson's point that "[m]arriage exists as a natural, pre-political, and pre-religious institution based upon human nature and its fulfillment,"Anderson fails to explain why marriage, understood this way, requires state recognition to sustain or promote it.

Pepperdine University Law Professor Douglas Kmiec: two-part Findlaw series on "The California Supreme Court Hearing on the Validity of Proposition 8"

03/09/09 Findlaw (part 1) and 03/10/09 Findlaw (part 2): In part 1, Douglas Kmiec summarizes the oral arguments, and faults the "claim that there is no check on what the people of California can do" by initiative. In part 2, he elaborates on a proposal by him and his Pepperdine colleague, Shelley Ross Saxer, that he thinks "would vindicate both sets of fundamental principles -- of equality and religious liberty -- that are inescapably intertwined with the same-sex marriage question." Justice Ming Chin had asked Kenneth Starr whether the proposal would provide equal protection to same sex couples, and whether the Court could order it. Without endorsing it, Starr answered that it would sustain the California constitution's guarantee of equal protection, but that the Court could not order it. (For discussion in the oral arguments, see also the 03/06/09 LA Times editorial favoring the proposal.) In his 3/10/09 Findlaw article, Kmiec offers draft legislation that the California legislature could adopt if the Court upholds Prop. 8.

03/10/09 ADF Alliance Alert: The Alliance Defense Fund characterizes the proposed remedy as "undermining Prop. 8."