I have a theory.

I'm not a lawyer, or a constitutional scholar, but sometimes I wish I was. Kind of in the same way that I long to be a forensic accountant, but that's another story altogether.

Anyway, I'm not a lawyer and maybe that why I'm a little confused about the California Supreme Courts decision to uphold Prop 8. Actually, the upholding isn't the part that confuses me, but since you didn't ask and are unlikely to be interested, I will go on at length. Because I have a theory.

1. On Tuesday, the CA Supreme Court upheld Proposition 8, which states that: Only marriage between a man and a woman is valid or recognized in California. That part I understand - those who know me know how passionately I am opposed to Prop 8, but I understand that 52% of the voters disagreed with me and that this is the proper way to amend the Constitution of California.

2. The Court also ruled that the 18,000 same-sex marriages that took place before the November 2008 election will stand. Because laws go into effect prospectively, not retro-actively. I get it, I'm with you.

3. In her concurring opinion, Justice Werdegar says (and I quote):

Equal protection’s continuing vitality in the present context is shown by this court’s unanimous reaffirmation of its conclusions in the Marriage Cases, supra, 43 Cal.4th 757, that laws discriminating on the basis of sexual orientation are subject to strict scrutiny, and that — excepting the name — same-sex couples are entitled to enjoy all of the rights of marriage. Accordingly, all three branches of state government continue to have the duty, within their respective spheres of operation, today as before the passage of Proposition 8, to eliminate the remaining important differences between marriage and domestic partnership, both in substance and perception. The measure puts one solution beyond reach by prohibiting the state from naming future same-sex unions “marriages,” but it does not otherwise affect the state’s obligation to enforce the equal protection clause by protecting the “fundamental right . . . of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other official recognized family relationships.” (Marriage Cases, supra, at p. 830.) For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains.

Wait! What? So the State cannot call anything other than the union between a man and a woman "marriage" but it must accord equal rights of marriage as well as equal dignity, respect, and stature to all unions....Okay? Which brings me to my theory: The State of California has to get out of the marriage business. Because it cannot "marry" everyone equally, the State will have to "marry" no-one at all - and offer Domestic Partnerships to all couples, regardless of sexual orientation, as the alternative.

Somehow, I doubt it will come to that, but there's a part of me - the petty, vindictive part - that hopes it does. It's mean, I know. But if my kids can't share something, I just take it away. It seems to work. That's my theory.