A couple of weeks ago, two law professors from Pepperdine University (Douglas W. Kmiec and Shelley Ross Saxer) asked the California State Supreme Court to consider a compromise position on the issue of gay marriage (read the article here). The court was reviewing the recent passage of Proposition 8 in California, and Kmiec and Saxer came up with an idea that they thought would please all sides. Essentially, their idea comes down to this.
The court should direct the state to eliminate the word “marriage” from its vocabulary and replace it with some other term like civil union. Kmiec and Saxer argue that the state should stay out of the marriage business altogether. By doing so, the government could then treat all couples equally (be they heterosexual or homosexual) while not trampling on the religious sensibilities of those who want to guard the word marriage.
The main problem with Kmiec and Saxer’s proposal is that they have totally missed the point of the current debate over marriage. The debate is not primarily concerned about who gets to use the word marriage. If this debate were merely about semantics, I doubt that this issue would be on anyone’s radar screen right now. Rather, this debate is about whether or not state-sanctioned heterosexual unions (heretofore known as marriage) will still be privileged in law. Kmiec and Saxer’s proposal would mean that marriage would not be privileged in law.
For this reason, this proposal is no compromise. It’s just playing musical chairs with words. It elevates homosexual unions while demoting heterosexual ones, all under the banner of equality. But make no mistake, the substance of this proposal is every bit as radical as those who opposed Proposition 8.