Some faiths accept same-sex relationships and others profoundly object. As a matter of religious freedom, both must be accommodated, but how? Separate state and church. Prop. 8 keeps the state - not the church - from using the terminology of marriage to officially acknowledge a same-sex relationship. That's all it does. Prop. 8 should not be thought of, as some argue, as revoking rights granted by an activist judiciary. After all, the official ballot summary recited: "Prop. 8 ... doesn't take away any rights or benefits ...."
To blunt the notion that people can be deprived of fundamental civil or religious liberties by initiative, we recommend the court:
-- Affirm its prior judgment recognizing the equality previously given all citizens by the state Assembly.
-- Honor the stated intent of Prop. 8 (viz., precluding the state from using marriage terminology to officially acknowledge any relationship other than that of a male-female couple) - an important goal to be faithful to the people as well, but one which cannot be accomplished by undermining the principal one of equality.
-- Direct the state to employ non-marriage terminology for all couples - be it civil union or some equivalent. While new terminology for all may at first seem awkward - mostly in greeting card shops - the third step dovetails with the court's important responsibility to reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow.
What Kmiec and his coauthor present as a moderate, compromise position, is in fact, a complete capitulation. He accepts at face value the claims that redefining marriage is a civil rights imperative. But this is precisely the claim that the voters of CA rejected. Same sex marriage is much more than a civil rights issue: redefining marriage will have many, many ramifications throughout society. These consequences swayed the voters, but evidently the opponents of Prop 8 do not even consider them worth mentioning. "Getting the State Out of the Marriage Business" is not a compromise, but a capitulation. I will have an article about this soon. Newsleter subscribers will be the first to know. Sign up for the Ruth Institute newsletter here. The fact that same sex marriage supporters have gone to court over this illustrates one thing: they have given up even the pretense of making rational arguments in favor of their position. During the campaign, their argument was, This is unfair, you are hurting our feelings. We responded with real concerns about the impact of redefining marriage on religious liberty, school curriculum and much more. But as long as ssm proponents can keep the spotlight on civil rights, they excuse themselves from even having to face these issues.