Douglas W. Kmiec and Shelley Ross Saxer, writing in the San Francisco Chronicle:
On Thursday, our law dean, Kenneth Starr, will defend Proposition 8 in the California Supreme Court. Knowing the dean to value open and civil debate, we write – respectfully – to dissent. One of us (Saxer)opposed Prop. 8 for civil rights reasons; Kmiec supported it for reasons of religious liberty. Today, both of us believe the arguments in support of Prop. 8 fail each of these interests.
Carl Olson:
If I understand Kmiec and Saxer correctly, they are saying that the state should no longer use any language normally connected with marriage, including terms such as “marriage” and “married.” The gratuitous assumption is that because marriage is supposedly of religious origin, in a civil order that legally distinguishes between state and church, there is no state interest or purpose in defining marriage as union between one man and one woman. But how does that follow? A good case can be made, historically speaking, for the religious origin of laws against murder, theft, rape, and, yes, slavery. Shall we have a state-neutral stance regarding those activities?
