In the event Proposition 8 passes, the worst case scenario is same-sex unions in California post-Nov. 4 will be domestic partnerships. Attorney General Jerry Brown has opined that those marriages performed before Nov. 5 will continue to be “marriages” under California law.

That’s the worst case scenario.

The most likely scenario if Proposition 8 passes is that attorneys for No on 8 will be in court the next day seeking a stay against it.

In short, upon passage, same-sex marriages will continue, the only condition perhaps being that a court could require county clerks to indicate on forms that same-sex marriages revert to domestic partnerships.

A court will issue a stay until the legal issues surrounding the measure are resolved. This is because when an initiative takes away a fundamental right, such as the right to marry, a court must issue a stay unless the state would suffer irreparable harm.

California will not suffer irreparable harm if same-sex couples continue to marry. Roughly 12,000 couples have married in the last six months. That’s about 24,000 people, not even enough to fill the upper deck at Petco Park. And traditional marriage hasn’t suffered whatsoever.

If anything, the state will suffer harm if same-sex couples can no longer marry. The state loses revenue from marriage licenses, applications need to be re-worked, and, most of all, children within these marriages can be affected.

Children of same-sex married couples could lose federal benefits. For example, the federal Office of Legal Counsel ruled this summer that children within a married, same-sex couple are entitled to Social Security benefits, just like children in a traditional marriage.

The ruling said that federal agencies look to the law of the state to determine the validity of the marriage. So children in same-sex marriages in California, Massachusetts, and Connecticut can receive Social Security benefits from either of their married parents.

However, if the parents are not legally married, i.e. if they’re in domestic partnerships, the children cannot receive benefits from both parents.

I’m hardly an apologist for the Bush administration, but this ruling last summer from the Bush’s Office of Legal Counsel was a huge gift. Only a handful of folks really know how significant this was.

The most compelling argument in favor of same-sex marriage is fair treatment for the children in these unions. Only the far extreme could argue that federal and state law should sanction treating children of same-sex marriages in a “separate and unequal way” than children of traditional marriages.

Even President Bush agrees that Vice President Cheney’s grandson – born this year to Cheney’s daughter Mary and her partner – deserves to be treated no differently under the law than Dick and Lynne’s other grandchildren.

Ultimately, this is why same-sex marriage is inevitable: Our federal courts do not believe it’s fair that children suffer discrimination by virtue of their parents’ status.

So Proposition 8, if it passes, will be stayed until courts can resolve issues related to the initiative itself.

First, persons who signed the petitions for the ballot measure did not know that same-sex marriage was a fundamental right under the California Constitution. The Court had not ruled yet.

Second, because the measure changes the California Constitution in a significant way, it’s not merely an amendment; it’s a revision, so it requires a two-thirds vote.

The judiciary needs to resolve those issues.

If, for some reason, a state court doesn’t issue a stay, then opponents will seek a stay from a federal court, most likely in San Francisco.

Because Proposition 8 would deny same-sex couples and their children equal protection of law, a court would stay the action until the issue is fully resolved by a federal court.

Most of us assume that a federal district judge would issue a stay, and could rule, like the California Supreme Court, that denying same-sex couples and their children equal protection violates the federal Constitution.

Such a ruling would most likely be upheld by the Ninth Circuit Court of Appeals; it might not even get four votes by the U.S. Supreme Court for review.