Pro-Marriage Crowd, Take Heart.

The California state Supreme Court upheld Proposition 8’s ban on gay marriage this week. Even before the decision was announced, both sides in the war over the definition of marriage were already preparing for the next battle. According to the New York and LA Times[i][ii], organizations for and against gay marriage had issued pleas for donations within an hour and a half of the ruling’s announcement. The legal battles are far from over, with a ballot initiative to undo Prop. 8 planned for 2010, and, just tonight, I heard on the radio that lawyers Theodore B. Olson and David Boies have taken the case before the Los Angeles United States District Court to be challenged under federal law, and that they have also sought an injunction suspending the California court’s ruling and Prop 8, allowing gay couples to be married once again until the case is finally decided. We are truly living in historic times and events are rapidly taking place that will be recorded in the history books!

Now, with what little experience I have with the law – my family is composed almost entirely of attorneys, and I worked a summer in a law office – the Court’s decision on Tuesday was bull. Now, I know the issue of gay marriage is a sensitive one, one that is very close to a lot of people’s hearts, and I do not mean for this article to be a personal affront to anyone, regardless of their beliefs. Furthermore, I wish to remove the issue of religion from this particular article and its arguments. I am not debating on theological grounds whether the Catholic Church or the Mormon Church should recognize gay marriage, allow gay weddings in their facilities, or allow their ministers to administer such a sacrament (or officiate such a service, whatever your sect’s preferred ecclesiastical jargon). This argument is concerned with the interpretation of the constitutions of the state of California and the United States of America. As a Catholic, I can think that moral law says that gay marriage is impossible and immoral, but the Constitutions do not acknowledge moral law, even if moral law says that they should.

The Court’s own language in the ruling shows regret and displeasure with the ruling even as it promulgates it. As Tim Rutten of the LA Times wrote on the matter, “Tuesday’s ruling stands in the line of moral retreat and expedient retrenchment that includes Dred Scott v. Sanford, Plessy v. Ferguson and Korematsu v. the United States.” The Court’s first big mistake is claiming that an initiative that passes by only 52% and takes away the rights of all Californians to enter into legally-recognized marriage with the partner of their choice, regardless of either partner’s gender, constitutes merely an amendment of the state constitution and not a revision, and that such is but a “‘narrow and limited exception’ to equality”. With what the court wrote about its own ruling makes you wonder why they passed their decision:

“Describing the effect of Proposition 8 as narrow and limited fails to acknowledge the significance of the discrimination it requires. But even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849…”[iii]

“Although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated ‘marriage’, in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage’…”[iv]

“No authority supports the Attorney General’s claim that a constitutional amendment adopted through the constitutionally prescribed procedure is invalid simply because the amendment affects a prior judicial interpretation of a right that the Constitution denominates ‘inalienable’…”[v]

The majority opinion smacks of the long-discredited “separate but equal” doctrine, and also raises the spectre of civil rights being up to the decision of the majority, a condition that makes one wonder why a Constitution with a Bill of Rights is necessary, and whether Civil Rights Act would have passed a popular vote in ’64. The very “core set of basic substantive legal rights” of all people are under threat with establishment of this precedent. I’m all for the people having the ability to directly amend the constitutions of states and of the nation without having to go through the legislature. I see it as a way to circumvent government corruption, and as a way for the people to amend constitutions to reflect important changes. I also believe, however, that we need a set constitution that clearly defines our legal rights, and precisely delineates the limits of government authority. I believe that the basic rights of the people should be insulated from the will of the mob. Heaven knows that if it were it not for the First Amendment that some states in the South would become fundamentalist theocracies, and proceed to kick out all the blacks, Catholics, atheists, and Jews. Were it not for the Second Amendment, we’d have much stricter gun laws, as the anti-gun campaign would have long ago used the electoral knee-jerk reaction to some school shooting to ban guns entirely! It’s a conflict between being democratic and protecting the rights of the minority that is built into our nation, a conflict that might not have a solution.

The Court’s decision contained the seeds of its own destruction. By permitting the marriages of the 18,000 or so gay couples that tied the knot between last May and November to stand, and acknowledging the ability of the voters to undo Prop. 8, the sagacious thing to do by the pro-same-sex marriage crowd would be to wait another few years. In 2000, Prop. 22 passed 61.4% to 38%, winning by 23.4 percentage points. Eight years later, 2008, Prop 8 passed as well, but by only 4.94 percentage points, a change of 18.46 percentage points over 8 years, or just about 2.3 percentage points a year! Those figures aren’t even taking into account the fact that ‘08 was a historic year with higher than average voter turn-out, especially amongst minority voter groups that don’t usually vote in such numbers. What’s more, it is likely that a new proposition would do better by dealing with the anti-marriage crowd’s biggest talking points to scare up voters: including amendments guaranteeing that kids won’t be taught about gay marriage in schools against their parent’s wishes, that religious-based adoption agencies won’t be shut down for refusing to give kids to gay couples, and that, no, your church won’t lose its tax exemption and your pastor won’t be jailed for hate crimes if your church won’t allow gay couples to marry. With those assurances to moderate, independent and conservative voters, and the 4.6 percentage shift (if trends continue), it’s most likely that a proposition overturning Prop 8 would pass. The best that the pro-gay marriage crowd can do until that time will be to win-over as many of the middle-of-the-road type individuals, and dispel as many negative myths as they can. The spreading legalization of gay marriage in other states since Prop 8 passed, with Iowa, Vermont, Maine, and Connecticut so far, and New York, New Hampshire, New Jersey, and Hawaii considering joining the party as well, can only help the movement, as they’ll demonstrate that, no, religion won’t be outlawed, children won’t become drug-using sexual deviants, husbands won’t start beating their wives and cheating on them with other men, and God will not rain down divine punishment if a few committed gay couples can get marriage certificates. The 18,000 or so couples that are still legally married will be crucial in this time. The anti-gay marriage crowd will be waiting and checking to see if, by the time November 2010 rolls around, a greater percentage of the gay couples married May through November 2008 had divorced than the percentage of straight couples married during that period. If those 18,000 couples stay together and stay happy together, as much or more as any average 18,000 straight married couples, they’ll prove to America that gays are not some deviant, mentally-ill immoral subculture, and the right will be forced to either acknowledge and adapt to that reality, or reject reality and retreat from political and social relevance.

Theodore Olsen and David Boies, the two lawyers who were on opposing sides of the 2000 Bush v. Gore case, have brought a challenge to the ruling to federal courts[vi]. Most gay marriage advocacy groups are calling the move dangerous and premature. Even if the federal courts overturns Prop 8, it would trigger a voter backlash and lead to another proposition, which, if it passed, would just reaffirm the growing belief that activist judges are trying to force gay marriage on the people of California, contrary to numerous voter propositions. Going through the electorate again, in a campaign that focuses on the facts and which takes place during a less frantic election, would be a lot wiser. Furthermore, an appeal in federal court could lead to the case being heard before the Supreme Court of the United States, and the Highest Court’s current composition means that it would most likely overturn the lower federal court’s ruling, setting the movement for marriage equality back decades, and marring Obama’s first term, overshadowing his appointment of Sotomayor (if she’s confirmed).

The future is being made right now. We could be witnessing, in these next few months, the ending of a bitter and bizarre campaign in America’s ongoing “culture wars”. While the course of history is generally largely by the actions of the powerful at the top, this chapter has involved massive grassroots popular involvement. The people of the United States, Californians in particular, will be key players in the events of days to come.

[i] The New York Times, May 27, 2009

[ii] The Los Angeles Times, May 27, 2009

[iii] From Justice Moreno’s concurring and dissenting opinion.

[iv] From majority opinion

[v] From majority opinion.

[vi] http://www.huffingtonpost.com/2009/05/28/theodore-olson-and-david-_n_208450.html; http://politicalticker.blogs.cnn.com/2009/05/27/bush-v-gore-lawyers-launch-new-attack-on-same-sex-marriage-ban/; http://www.reuters.com/article/pressRelease/idUS19423+27-May-2009+PRN20090527