Now that the California Supreme Court has accepted review of Proposition “H8” but refused to stay its enforcement, it’s unlikely to overturn the measure.

The court’s action indicates that legal arguments opposing Proposition 8 are weak. Further, we’ve probably lost our most vocal advocate, Justice Joyce Kennard – the only justice who voted not to hear legal challenges against it.

The two arguments up for review include: that the measure surpasses the legal scope of a ballot initiative by permitting a majority to limit a minority group’s rights; and that it disturbs the constitutional separation of powers by restricting judicial authority. As for Justice Kennard’s stance, it shows she views the constitutionality of the measure as being so irrefutable it doesn’t merit review.

Consequently, at both the state and federal level we need to leverage an additional argument to support same-sex marriage: We need to emphasize the effect that prohibiting it would have on the children same-sex couples adopt.

It’s an argument we haven’t used yet and one that if we don’t will guarantee we lose.

Equally importantly, it’s valid. After all, in 1994, when California voted for Proposition 187, which, in part, would have kicked children of illegal immigrants out of school, the courts stayed the measure immediately. We don’t punish children for their parents’ immigration status; why punish them for their parents’ marital status?

We have to focus on the critical reason same-sex couples should be permitted to marry and receive tax subsidies – raising the next generation.

There are 80,000 children in California alone in foster care and hundreds of thousands across country. same-sex couples are increasingly adopting them. In 1999, American Civil Liberties Union (ACLU) researchers estimated the total number of children nationwide living with at least one gay parent ranged from six to 14 million. That number is doubtless higher now, although the ACLU says it has not updated its figures.

We need to let voters know that foster children will be the losers if same-sex couples can’t marry. Sure, gays can still adopt kids if they’re not married, but they can’t benefit from the same tax benefits that straight couples do, and so they don’t have a level playing field to give them the same standard of living.

Forget about the California Supreme Court. Focus on peaceful protests at the federal level, and let’s make sure we get the California Legislature to put this matter back on the ballot for 2010 by focusing on the children to substantiate our cause.

It’s the only way we’ll win.

My fellow Jews are particularly upset about the ugliness of the Yes on 8 campaign. Its passage, along with stripping rights from couples and their children, reminds us of the Holocaust, when Jews were segregated, forced to wear yellow stars and eventually killed along with gays, Catholics and other groups.

Of course Proposition 8 doesn’t compare with such atrocities. But it’s the first time that anyone born in the United States in the last 50 years has experienced a group losing a fundamental right to equality.

Every Jew knows the words “Never again!” And when any group suffers a loss of civil rights it’s a call to action, because we know we could be next. So it’s safe to say that County Recorder Greg Smith doesn’t relish no longer being able to license same-sex couples and that Sheriff Bill Kolender doesn’t enjoy having to arrest same-sex couples who refuse to leave County buildings without a license to marry. Attorney General Bonnie Dumanis doesn’t enjoy prosecuting them, and Judge David Rubin doesn’t like to sentence them.

How do I know? Because in addition to being public servants, they are Jewish.

The Jewish community voted overwhelmingly against Proposition 8. And now that it’s seeing who is really behind it, it’s starting to connect the dots. After all, it wasn’t too long ago that an initiative banning inter-faith marriage could have passed in California. My point is that we have allies and we need to join forces with them.