I’m right there with many of you who are disappointed in the passage of California’s Prop 8, but I still don’t see how it’s possible, as Schwarzenneger suggests, for the state Supreme Court to simply overturn it. What are they going to do, declare an amendment to the constitution unconstitutional? That doesn’t make an ounce of sense as far as I can see.
Even if this was somehow possible, pro-gay-marriage forces would be well advised to steer clear of legal shenanigans to get Prop 8 invalidated. There was talk, for instance, of some sort of legal discovery that meant the proposition had to pass with 60% of the vote instead of 50%. Maybe that’s true, but alas, the time and place for bringing up that notion was before Election Day. When you make use of perceived loopholes, even if you are totally in the right, it makes it look like you can’t make your case any other way.
If any groups out there are working to undo Prop 8, they should stop. Seriously. I would even go a step further, and say that even if there is some perfectly legal way for the California Supreme Court to cancel out the results of the election, it is not in the best interest of gays that this should happen.
There are voters who claim they can be swayed in favor of gay marriage except that they dislike having massive cultural change dictated by the courts. You might say, phooey, these people are just making excuses for their homophobia. In some cases, I’m sure that’s true. But I think there are plenty of others who are sincere — look at right-wing bloggers AllahPundit and Patterico, the first of whom would have voted against the proposition (he doesn’t live in CA) and the second of whom actually did. I’m pretty sure neither one thinks a panel of judges should have legalized gay marriage in the first place. But once the proposition was on the ballot, they couldn’t see a reason to discriminate against gays.
My guess is there are thousands of other borderline voters who could have gone the same way. Why didn’t they? Because they convinced themselves that the judges were wrong to legalize gay marriage, and they wanted to use their votes to stick a thumb in the eye of those judges — much more than they wanted to attend their distant Uncle Carl’s wedding to his boyfriend, Bob.
You’re saying: Cripes, who needs these people? And the answer is, you do, if you’re in favor of gay marriage. Did you see how close the vote was? It’s going to be close next time, too. And there will be a next time. That much is assured. Maybe gay marriage can be kept alive in the short term by invoking clause 16.a.6 of a law passed by Congress back in 1899 — but in the long term, legal pretzel-making of this nature is only going to drive these borderline voters further away, harming the chances of making gay marriage permanent.
Face it: The Prop 8 ship has sailed. The only route to true acceptance is to regroup, put a proposition of your own on next year’s ballot, and see that it passes with flying colors. I assume that work has already begun.
Update: Lance Arthur seems to have come to much the same conclusion, if not for the same reasons:
Not long after it became clear that Prop. 8 was going to pass, opponents representing my rights took their case to court in an attempt to overturn and throw out the vote. Frankly, I’m against that tactic. For one thing, they only did that after the vote didn’t go our way. If it really was an illegal proposition, why didn’t they do something like that before the vote? Was it because everyone thought it would be defeated? I also think that, as much as I hate to admit it, the proponents have a point. This has been voted on twice now, and each time the majority spoke. If we’re going to get our rights, I’d prefer to do it in an environment where we’re not constantly under legal threat to have them removed all over again. Not that defeat of Prop. 8 necessarily meant that they wouldn’t get another million signatures in two year’s time and try it again, but if the population of California had voted against it this time, perhaps another proposition would have been harder to come by.
12 Comments
There’s a lot here I could respond to, but I’ll cut it down to one key issue: why do you assume that the only acceptable route to gay marriage is through the ballot box and not the court system? I believe that the majority of civil rights progress in our country has come through the latter; the courts are often well ahead of popular opinion on such matters.
I wonder how many years it would have taken for black equality to arrive if we left it up to a vote. Or which states would be last to vote for it. Or if there would still be any states against it, assuming blacks would have just moved to friendlier places.
This is such a basic right that I can’t believe we actually allow it to be voted upon. Isn’t it obvious that history is going to paint those against gay marriage as even more bigoted than now?
The one ray of sunshine as you said was how close the vote was, and how much closer it will be the next time. I swear, I want to do away with the legal option to divorce just to see how dedicated to the institution of marriage these selfish pricks really are.
Trip: I’m assuming nothing of the sort. I think it’s preferable to go through the ballot box, but the court system is not without validity. (I admit it took me some time and consideration to reach that conclusion.) I’m talking about how going through the courts is perceived by certain people as an end-run around Joe Voter — and those people are going to wind up voting on the propositions that inevitably result from such court decisions. I think it’s possible that these are the swing voters for this issue, and I don’t really see the point of further alienating them by engaging in ever-more-complicated legalistic loop-de-loops — not when those maneuverings are just going to wind up right back in the voting booth.
I particularly think if there was a legal option that could undo Prop 8 in its entirety, that it would be suicide to take advantage of it. It might be morally correct; it might be legally correct; but it would also be widely perceived as dirty pool. (The anti forces would surely frame it that way.) If that legal trick was the end of the story, then sure, who cares how it’s perceived? Legal is legal and right is right. But it won’t be the end of the story — not in California, where anybody who mails in enough soup can labels can get a proposition on the ballot. If I’m correct and there is a group of voters who voted against gay marriage simply because of the court decision, then I suggest that those voters would be pushed further away by more court decisions — particularly if those decisions undo their Prop 8 votes.
I agree with Toonhead that it’s crazy that we even have to have this discussion.
I just don’t see it that way. With something as emotionally charged as the issue of gay marriage, people are going to vote based on how they feel about the issue, not how they feel about the legal maneuverings about the issue. I can’t imagine someone thinking “Well, yes, I do believe homosexuals should have the same rights as heterosexuals, and it’s unfair that they don’t, and I could do something about it — but darn it, those activist judges shouldn’t have overturned the ballot based on that loophole, so I’m going to vote against how I feel on the issue!”
What changes people’s minds is seeing real-world results. After interracial marriage was legalized nationwide by the Supreme Court, it didn’t take long for millions of people to see that those marriages weren’t so scary after all. The same thing is happening right now in Massachusetts, where people have had a few years to see that heterosexual marriages aren’t crumbling as a result of gay people getting married. If the California marriages had had a little while to become entrenched, I can almost guarantee that the vote would have gone the other way.
So yes, while it would have been nice to have the ballot go the other way, I’m all for overturning this via the courts if that’s the likeliest way to get this abomination undone. I guess we’ll just have to agree to disagree on this one.
My first thought is that, without knowing the specifics of California law, I can at least envision a semi-plausible argument that an amendment might improperly amend a constitution. If the U.S. passed a national amendment against flag burning, and the amendment basically read “flag burning is a federal crime and may be punishable by Congress blah blah”, I could see an argument that the amendment failed to address the contradiction between itself and the First Amendment. Of course, I also accept that California law may find that completely ludicrous.
Second, I think presenting these attempts as “is it legal/moral” vs. “will it infuriate swing voters” leaves out the very important matter of the thousands of Californians who are trying to avoid being summarily unmarried. I would argue that preventing that could possibly (and to state what is only my own opinion, would) trump a setback for the overall movement.
I live in CA. The Mormon Church passed out a MILLION yard signs saying “Yes on 8.” I tried to get a No on 8 sign, and the campaign was selling them for I think $55. And they said “Vote No on Prop 8″ with some other stuff underneath. They were so wordy, it was hard to read the sign from more than about 5 feet away. People here were inundated with signs saying yes on 8, so assumed everyone was voting on it.
Also, there were false TV ads claiming, among other things, that if 8 didn’t pass, children would be taught in schools that homosexuality was okay. They also falsely claimed that churches would be obligated by law to marry gay people.
So the people had their say, but many of them didn’t understand what the truth about what they were voting for.
I like your blog, but in this post you sound disturbingly like the people who told inter-racial couples who wanted to marry to be patient, that eventually they’d be allowed to. Thank God for Brown v. Board of Education. Without that court ruling, black children might still be taught in “separate but equal” schools. The courts safeguard against discrimination of minorities by the majority.
And as a lawyer who worked for an appellate judge for nine years, I absolutely believe the law is unconstitutional. You can’t amend a clause in the Constitution by contradicting it. Laws like these have been struck down before. I believe the law denying illegal immigrants education and health benefits was ruled unconstitutional for the same reason.
You sound disturbingly like the people who told inter-racial couples who wanted to marry to be patient, that eventually they’d be allowed to.
Um, no, I don’t plan on being labelled a villain simply because I am entering the post-election discussion with some degree of pragmatism. I’d like to see one of these proposals pass one of these days (or, wait — fail… anyway, I want gay marriage to exist unquestioned) and I maintain a) that there is a sizable bloc of voters than can be swayed over to the pro-marriage side, and b) this bloc, right or wrong, finds distasteful the attempts to overthrow their vote from the previous election — that they didn’t vote the right way, so it shouldn’t count.
The longer I spend thinking about it, the more I wonder what the point there is in even talking about this. Say Prop 8 failed last week. The anti forces would simply try again next year, and every year until they succeeded, at which point it would be the pro-marriage forces turn to try to set things right. I don’t see how this madness can ever be brought to a halt without action from the Supreme Court.
Most of what I have to say has been said by Trip. I think the number of people who voted in favor of 8 because of objections to the court’s “activism”, who would otherwise have voted against it, is miniscule, and that any backlash against the courts’ overturning the current amendment would be equally miniscule. Votes on gay marriage ultimately come down to whether voters think gays should be allowed to marry.
However, I’d like to make one more point which hasn’t been directly addressed: if the amendment is overturned, even on a legal (or even legally dubious) technicality, it will have the immediate effect that gays will be able to marry in California. Even if I agreed with your strategic argument, I don’t think gays should forego the ability to marry, as soon as possible, in pursuit of an abstract strategic vision.
At any rate, the social and demographic tide is so overwhelmingly against the anti-gay forces that any strategic misstep on the pro-gay side is only going to delay the inevitable, and perhaps not by much. Young voters voted overwhelmingly against 8.
The answer is that they did, in July.
“Meeting in closed session, the court denied a petition calling for the removal of the initiative, Proposition 8, on the grounds it was a constitutional revision that only the Legislature or a constitutional convention could place before voters.”
http://articles.latimes.com/2008/jul/17/local/me-gaymarriage17
So, you know, that whole argument goes out the window.
Personally, I don’t think the revision/amendment argument is likely to hold much water, but there are certain other legal issues that should be cleared up, such as the questionable validity of the marriages performed in California in the past few months. The text of the amendment says they aren’t valid, the proposers of the amendment said that they are valid, and as a result, there are some major implications that the Supreme Court has to iron out, given the new face of the constitution. I feel like I heard an argument (no chance of finding it, sorry) that reconciling the previous ruling with the current constitution might mean that no Californians could be married. I don’t think that’s at all likely, but it gives an indication of how screwy the legal situation can become after people start reflexively messing with constitutions.
Beyond that, my understanding is that the only other option left is an appeal to the U.S. Constitution, which is an even more confusing scenario.
Let me add, since I notice that it isn’t clear from what I quoted, that “the California supreme court simply decided not to decide that issue. Now it presumably will have to face it.”
http://www.stephenbainbridge.com/punditry/comments/proposition_8_passes_what_now/
At any rate, the social and demographic tide is so overwhelmingly against the anti-gay forces that any strategic misstep on the pro-gay side is only going to delay the inevitable, and perhaps not by much.
This is absolutely true. Ultimately, we are debating whether to take the shorter path or the longer path — and whether a particular path is shorter or longer — but I have no doubt it’s all going to wind up in the same place.
Some discussion of the legal ramifications is here, mostly me having no idea what I’m talking about and Tinhorn being smart and lawyery, and providing useful links.