After the Supreme Court of California held that the refusal to marry same-sex couples was unconstitutional, the saviors of marriage mobilized to stop the end of life as we know it, and California’s Proposition 8 made its way onto the ballot.
Prop 8, entitled the “California Marriage Protection Act,” provides for a constitutional amendment that states “only marriage between a man and a woman is valid or recognized in California.” After some wrangling by the attorney general, it ended up looking like this in the voter guide:
ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT. Changes the California Constitution to eliminate the right of same-sex couples to marry in California. Provides that only marriage between a man and a woman is valid or recognized in California. Fiscal Impact: Over next few years, potential revenue loss, mainly sales taxes, totaling in the several tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments.
The word out of California is that it appears that the initiative will pass, and that California voters will approve a change to their Constitution that will “constitutionalize” what their Supreme Court has held to be unconstitutional.
Aside from complaint that the anti-Prop 8 forces have gotten their butts kicked by the opposition, and sought to pursue an “agnostic” course that neglected to mention gays and barely mentioned marriage in the fight (which I take to mean that they fought like a bunch of pansies), it seems almost anachronistic that this issue remains so important to some people. They must hate gays and lesbians so very much that they are willing to throw enormous angst and cash into this fight. I can’t help but wonder what they are so afraid of?
Still, the legal issue of whether a state Constitution can incorporate a facially prejudicial term presents a very curious question. Does this mean that a proposition can be put forth that a marriage between a black man and a white woman shall not be “valid or recognized” in California?
It doesn’t matter that some call gay marriage an abomination. We all have things we consider “abominations”, though they tend to vary wildly. Why is your abomination better than mine? If the constitutional proposition commands discrimination that would deny equal protection to a specific class, then it creates an internal constitutional conflict. We can’t discriminate, but we must discriminate, hardly seems to make for an acceptable situation (personal abominations aside).
But what will happen if (when?) Prop 8 is approved, and challenged as it will most certainly be? How to reconcile a new constitutional provision that is inconsistent with existing constitutional interpretation? And adding even more fuel to the fire, what becomes of it if (when?) it goes to the Supreme Court of the United States? Can the federal Constitution dictate what a state Constitution can or cannot say? Not state laws, which it obviously can, but a Constitution. And one can only imagine what the Supreme Court of the United States, given its political influences, will do with such an issue.
It seems both unfathomable that this remains a crisis in the eyes of the supporters of Prop 8, largely religious groups whose faith demands hatred of homosexuality, as if gay marriage has much of anything to do with them, the fight is real and they are going to the mats. Interestingly, this comes as Connecticut has held it unconstitutional to deny the right to marry to same-sex couples. The sun still rose the next day, and little changed for male-female married couples. They were still miserable.
So if, after Prop 8, California shuts its doors to gay couples, they are just going to have to go somewhere else to marry. It changes nothing, and cannot stop the horrible reality that gay marriage is a done deal no matter what the bible has to say or how many explanations are given that it’s just not natural.
There is one lesson to be learned from the Prop 8 fight. The efforts to rationalize the existence of homosexuality have failed for those who are against it because it’s “evil”. Reason will never win this battle, and the fear of “in your face” politics exacerbating the hatred and opposition has proven to be a losing position. This is just basic bigotry, and no one need fear that by asserting one’s right to be whoever you are, and to be treated without prejudice, you might rile up the bigots. Rile them up. Face the fight squarely and stare the bigots down.
The rallying cry was once, “we’re queer, we’re here, get used to it,” the gay version of veni, vidi, vici. It served its purpose well. We really need to get beyond this fear that someone else’s sexuality threatens our own. There are just too many other problems that require our attention to keep battling this lost cause. Gay marriage is a reality. Gay marriage does no harm to straight marriage. Get over it.
Update: Great minds think alike? Greater minds think of it first, and Gideon beat me to the punch on the question of constitutionality of an unconstitutional amendment.
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Yeah, but . . . I’ve read the CA decision, and while I don’t pretend to have the professional chops to evaluate it, I’ll pretend to have the professional chops to analyze it: it seemed to me be Justices reaching, pretty far, to get a decision that they wanted. (This has been known to happen.)
I agree with the policy, and I hope it’s not just because I’ve got married gay family and friends, although I’m sure that doesn’t hurt. Seems to me that it’s a pro-family decision, and I’m a pro-family guy.
But . . . but there are folks who truly are haunted, for reasons sufficient to them, by the spectre of gay couples having an official state marriage certificate and/or what appears to some (including me) to be judges turning their policy preferences into Constitutional rights.
Which is where I think that this initiative is (or, from the way it’s going perhaps was) an opportunity: if it’s defeated, it’s a way for the voters of California to say, “Hey, chill. It’s not a problem, this time.”
Maybe it’ll still happen.
There are people who feel that way, “policy preferences,” about blacks being president as well. That’s the point of getting past some of the uglier stuff in our history. We have plenty of skeletons in the American closet, and we as a nation need to decide if we’re going to rise above them or keep pulling them out whenever we get nervous about change. Some policy preferences involve legitimate choices; some are just appeals to mindless historic fear and prejudice.
Sure. And we get past that by persuasion, and persuasion sometimes takes generations.
As to the whole gay marriage thing, we’ve come a long way in my lifetime, where we’re arguing about (at least in California) naming rights and the right to pay lower or higher taxes as a married couple (depending on earnings, it could go either way).
And, yup, the policy preference embodied in the CA initiative is an appeal to fear and prejudice, and if the lawsuit that overturned CA law had happened some years later, my guess is that enough of the prejudices would have dissipated that the initiative would have been dead on arrival.
Thurgood Marshall established the strategy for this stuff eons ago: right case, right client, right court, right time, and, largely, the HRC has tried to follow that, just as, in a different context, Alan Gura did. With criminal defense, an attorney may not have a choice — you take clients as they find you, after all — but for folks trying to make changes when part of the task is neither getting somebody out of prison nor keeping him out of prison, there is a choice, and it’s looking like the folks who pushed the CA suit (and, again: I’m with them on the policy stuff) may have missed a key link in the chain.
To add on: I’m not quite with the HRC folks on the policy stuff; I don’t think they go far enough, as they leave out the poly crowd. Not my thing, either, but I think the folks I know in poly marriages ought to have their relationships recognized by the state, as well as their friends.
I never met anyone (as far as I know) in the poly crowd. I’m not going there at the moment, and I don’t know that it’s the same thing. It doesn’t fit well with the rest of the rationale.
CT is fighting a battle of its own. The pro-straight-marriage crowd is pushing for a Constitutional convention, so they can get a Constitutional Amendment banning gay-marriage or get referendum laws passed, allowing ballot measures.
I predict failure on that. Even if there’s enough support for it — and it’s been long enough since I left CT that I don’t have a feel for it — by the time that the laws could be changed, enough folks will know enough married gays and lesbians that they’ll stop being so scared of it.
(Works in other contexts, too; it’s how the attempt to reverse Michigan’s carry reform law failed. The antis could have raised enough signatures for the referendum, but not quickly enough to get it on the ballot until the new law had been in effect for at least two or three years; by then, it was a non-issue.)
One quibble: I’m part of the pro-straight-marriage crowd. It’s just that I don’t believe in special privileges for gays, and I think it’s a disgrace that gay men can so easily escape having annoying mothers-in-law.
But this is the state that elected Joe Lieberman to the Senate. They learn nothing in Connecticut.
> “They must hate gays and lesbians so very much that they are willing to throw enormous angst and cash into this fight. I can’t help but wonder what they are so afraid of?”
At a pragmatic partisan political level, what they’re so afraid of is losing a presidential election.
The GOP has a track record of success in mobilizing its base using the pretext of political red meat ballot initatives. Democrats are aware of this at a machine politics level (to the extent that Democrats can be said to even understand the concept of machine politics at national level)…and yet neither manage to offer ballot initiatives that effectively mobilize their own base, nor manage to effectively counter this tactic from Republicans.
(In fairness, Democratic base voters are spectacularly difficult to mobilize.)
While there are certainly rabid homophobes within the Republican party, for the machine Proposition 8 is really about nailing down California’s electoral college votes.
I sometimes think that is even more insulting than if it were personal…but a ballot initiative against immigrants, civil rights, or reproductive rights would have done the trick just as well. It’s just a matter of bad luck and bad timing for all those folks who just married their same sex spouses in California.
As for the policy side of things, I agree with you completely. The legislative homophobes of today are the spiritual descendants of the segregationists and anti-miscengenationists of the civil rights era.
An excellent, albeit cynical, point. Even assuming that the leaders are using this as a “get out the vote” mechanism, there are stilling the followers, for whom this is such a critical issue. Wouldn’t electing a president be enough of a reason to go vote? Possibly not, or possibly not something to leave to chance, making this added incentive a valuable tool. Thanks Shaula. I really hadn’t given that enough consideration.
I agree with you – I think it will fail, too.
Scott – you ever bring up Joe Lieberman again and I will hunt you down.
Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman, Joe Lieberman,
Painful, isn’t it?
That’s it. We’re through.
Aww, I’m sorry. I take then all back. Except the first one. I’m keeping that one right where it is.
Take Lieberman with you while you’re at it.
Isn’t the point that sexual preference is not protected under the federal constitution? Thus, if you can eliminate state consitution obstacles, you’re free to discriminate against gays. Not saying its right, but it answers your question about a facially prejudicial amendment to the state Constitution. The bigger problem here in California is how easy it is to amend the State Constitution. That is not how Constitution’s should work.