Why Losing the Proposition 8 Challenge in California Might Be a Good Thing
Many legal organizations that champion LGBT rights are more focused on the cause than the individual. At Family Fairness, we pride ourselves on putting the needs of the individual above the cause. This because while the cause will be won in time, we believe an individual client deserves a committed, focused advocate now. I understand that losing the Proposition 8 challenge in California would be bad news to the many same-sex couples currently residing in the state. We certainly do not hope that any loving, committed couple would have their marriage overturned. But solely for the purposes of this post, I would like to pull back a bit and look at the greater picture of the fight for marriage equality, and explore why losing the court battle may be a good thing for the cause as a whole.
Following Massachusetts's 2003 ruling in favor of marriage inclusion, the charges of "activist court" were levied en masse. California's ruling in 2008 refueled these accusations, and those who opposed marriage inclusion took up the mantle of 'Democracy Defenders' and claimed that courts should never overrule the will of the people. Ads characterizing the pro-gay movement as arrogant and pushing their agenda through an elitist, democracy-hating court system were effective with California voters, who voted on narrow margins shortly after the ruling to re-restrict marriage.
The current court battle to overturn Proposition 8 led, again, to these claims of anti-democratic rule with corrupt "activist courts" imposing their will on a dissenting majority. The "will of the people" expressed through a vote, they argued, should never be overruled.
Connecticut and Iowa faced their own similar attacks, and the self-proclaimed 'marriage defenders' continued to be highly critical of the same-sex marriage movement and its use of the court system to promote equality. Opponents characterized the movement as a scary juggernaut intent on assimilating the country state-by-state. They were now casting themselves as the real victims, whose freedoms were being taken away by a panel of unelected dictators who cared more for minority interests than the majority voice. Despite the courts historically being the protectors of liberty, they successfully portrayed them as undemocratic and anti-American for acting in this role. People continued to scoff at the elitists who were "legislating from the bench".
However, these sails began to lose wind as soon as Vermont's legislature passed a bill in favor of marriage equality. At once, the criticisms were robbed of credibility; accusing Vermont of "legislating from the legislature" simply did not have the same dismissive ring to it. Same-sex marriage could not longer be labeled an undemocratic endeavor when a supermajority of 70% of a state's elected officials approved it. And then, partly because the number of states offering marriage inclusion quadrupled in the span of only a few months, and partly because the victories were no longer confined to the courts, many 'marriage defenders' began to give up and admit defeat. The arguments they had used to win so many times suddenly no longer seemed as poignant. The tide had started to turn.
But we cannot rest on the momentum of victory for long. The Proposition 8 court battle will likely reinvigorate the anti-marriage crowd regardless of the outcome. If we win the case, it may again give strength to the claims of "activist courts" that has previously energized voters to repeal marriage rights and enact discriminatory constitutional amendments. If the courts are seen "invalidating the will of the people" once again, the 'marriage defenders' will have incentive to continue to use it as ammunition against our cause. And as the newest ad from the National Organization for Marriage shows, our opponents have not yet stopped stooping to fear and misinformation to make their case.
If we are to fight the portrayal of the "storm" of same-sex marriage as a juggernaut bred by elitists to feed on the the helpless masses, the battle cannot return to the courts. If we lose the Proposition 8 challenge, the issue will go to the voters in 2010. Opinion polls are already showing that voters who originally approved of Proposition 8 now believe they were misled. And if history is to be a guide, we can only conclude that the number of people supporting same-sex marriage will increase with time. At present, California is probably the state most able to win inclusive marriage by vote. If by 2010 we have states that have enacted equality through the court system, through the legislature, and through a direct vote, the arguments that marriage inclusion is contrary to the will of the people will be successfully refuted.
In the end, our cause will be better furthered by a winning vote than by a winning court case, and California is the most likely place for this to happen in the near future.
While I do not mean to suggest that I hope to lose the challenge of Proposition 8, I do not believe that outcome would be a bad thing. To the contrary, I think our cause may be helped by returning the issue to increasingly gay-friendly voters in 2010. And while we may all have to again endure months of million dollar campaigns of ads, winning voter-approved equality may be the final stake in the heart of the slowly dying 'marriage defender' beast.
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Discussion
I agree; the Prop 8 battle goes (as our opponents like to say) "far beyond same-sex marriage." If Prop 8 stands, any minority can have literally any right taken away by a simple majority vote.
Don't like Mormons? How about banning them from the state Don't like black people? Maybe we'll restrict the death penalty to only them. What about all those illegal Mexicans, we hate them right? Let's pass a law making it legal to shoot them on sight.
Although these scenarios sound far fetched, they will all be possible with a simple majority vote unless Prop 8 is overturned. The ability to take a fundamental right solely from one disfavored minority is very dangerous. The people of California included a separate, more difficult, revision process in their Constitution to prevent just these types of scenarios. The California Supreme Court must uphold the California constitution by overturning Prop 8.
- Jackson, 04/17/09 at 5:41 pmIf the judges make the wrong decision, people in California had better get up a new petition to take away the power to pass civil-liberty-reducing changes in the future.
- Julian, 04/18/09 at 2:14 pmHi andr and Jackson,
I actually agree with both of you. I don't think the court was swayed by this argument, though. My guess is that they will say that their hands are tied by precedent and policy and find that, though the outcome is absurd, the people of California do have the guaranteed right to define what their rights are. Hopefully, like Julian suggested, the court will hint that the people should amend the constitution to limit their ability to deny civil liberties, but beyond that, I do not know what legal principle the court has to stand on to overturn Prop 8.
So I agree, the implications if we fail the challenge are dire for minority rights, I just don't know what choice the court has. It might be up to the people to fix this mess, but it may be for the best that it is. People standing up for minority rights instead of the court having to do it sends a powerful message, I think.
- Brian Cavner, 04/18/09 at 6:19 pmI think that either way it brings more discussion and discussion on this topic is healthy.
- queerunity, 04/19/09 at 11:16 amThat is an excellent point. In many ways, the gay community has suffered from our past invisibility. It is easy to stigmatize and stereotype LGBT individuals when under the mistaken belief that there exists some sort of "us and them" dichotomy. After all, almost everyone knows someone who is LGBT even if they do not know they identify as LGBT. The more people are aware our presence and our issues, the less 'fringe' we seem.
Thanks for your comment!
- Brian Cavner, 04/19/09 at 11:26 amHave a question or comment about this article? Leave me a message.
I think the prop 8 challenge is important on a larger scale than simply gay-marriage.
Prop 8 was a referendum removing civil liberties from an unliked minority with a simple majority vote.
We generally seek to protect the rights of the minorities who, in a direct democracy, cannot protect themselves. It is this principle that allows for senate filibustering, it is this principle that underlies the requirement that amendments pass with 2/3 approval, it is this principle of guaranteed rights that underlies the Bill of Rights itself.
If the courts allow the prop 8 challenge to fail, then they set a dangerous precedent that future majorities have the power to make a minority's life worse, just because they don't like them.
- andr, 04/16/09 at 12:40 pm