In a major setback for gay marriage advocates, California voters passed Proposition 8 on Tuesday. Over the next couple of days, TNR's managing editor Richard Just and TNR's legal affairs editor Jeffrey Rosen will be debating the appropriate lessons to draw from the defeat. Rosen kicks things off below. (Click here for Richard Just's response.)
Dear Richard,
In our last dialogue on gay marriage in May, I expressed concern that the California Supreme Court’s decision to impose gay marriage by judicial fiat might trigger a backlash that would overturn the decision by popular initiative. Now that the California anti-gay marriage initiative has passed, I take no pleasure in seeing that prediction vindicated. With their overreaching, the California justices have set back the cause of gay marriage across the country. I have students and friends who were married in California since June, and who returned to the state to fight against the initiative. They’re understandably devastated that a basic right could be declared by the courts and then repealed by their fellow citizens.
The vote was close, and if it had gone the other way, I would have been happy to admit I was wrong and the California justices were right. In cases involving the culture wars, constitutional adjudication is often a test of how deft judges are at predicting what public opinion will accept. Brown v. Board of Education was celebrated in 1954 not because it was heroically counter-majoritarian but because it was popular with 54 percent of the country. Especially in cases where the constitutional arguments in favor of judicial activism are hotly contested, judges have to be especially careful not to take positions that relevant majorities will intensely resist. If they guess right, as the California justices did in 1948 when they struck down bans on interracial marriage, history hails them as prophets. If they guess wrong, as the California justices did this time around, they’re exposed as naïve and overconfident blunderers.
I’m surprised that the judges in the recent gay marriage decision have ignored the well-known lessons about constitutional backlash. In the California decision, the justices said, "The Court should review individual rights questions, unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience." Haven’t any of them read the history of the civil rights movement? Even more obtusely, the judges in the Connecticut gay marriage decision last month badly misstated the historical lessons of backlash that led to the failure of the Equal Rights Amendment. One reason the ERA failed is because, while it was being debated in the states, an over-eager Supreme Court made the amendment superfluous by declaring gender discrimination to be a “suspect classification” in the Frontiero case in 1973--precisely as the ERA would have done. Once ERA supporters realized they didn’t need a constitutional amendment, they stopped fighting, and then, two years later, a more conservative Supreme Court downgraded the status of gender discrimination below what the ERA would have protected--leaving women as a whole worse off.
The Connecticut Court, amazingly, twisted this cautionary tale about judicial activism into a celebration of judicial activism. “One of the lessons to be learned from Frontiero and its treatment of the equal rights amendment … is that, because support for particular legislation may ebb or flow at any time, the adjudication of the rights of a disfavored minority cannot depend solely on such an eventuality.” In fact, both the gender discrimination and gay marriage decisions teach the opposite lesson: The only way to put anti-discrimination bans on a firm footing is to build support for them in the political process, rather than encouraging judges to impose them ahead of schedule.
It’s instructive to compare the fate of the anti-gay marriage initiatives (which also passed in Florida and Arizona) with the anti-abortion initiatives, which failed in California and South Dakota. California voters refused to define a fertilized egg as a legal human being, and South Dakota voters rejected a measure that would have banned abortion in most circumstances. That’s not a surprise--support for near total abortion bans doesn’t reach a majority in even the most conservative states. And it suggests that now that pro-choice advocates have stopped hiding behind overly expansive readings of Roe v. Wade and have been forced to fight they’re battles in the political arena, they’re more than capable of defeating their pro-life opponents.
So here are the wages of judicial activism: After the Massachusetts decision declaring a right to gay marriage in 2003, eleven states passed anti-gay marriage initiatives, and today, 30 states now have constitutional bans. Given the polls showing strong support for gay marriage among younger people, the trend would almost certainly have gone in the other direction if state courts hadn’t been so quick to intervene. In light of the backlashes that over-eager judges have provoked, can anyone say that the cause of gay marriage--the cause of justice--is better served as a result?
Best regards,
Jeff
Jeffrey Rosen is the legal affairs editor for The New Republic.
Click here for Richard Just's response.
Print
COMMENTS (41)
Granted that courts cannot succeed if they get too far ahead of public opinion, there is a real issue about leaving the rights of unpopular minorities to the votes of the whole population, or even to the general political process. Brown is hardly a fair test -- if only 54 percent of the whole population agreed with it, it would surely have failed if put to a vote in those parts of the country where it had a real (or at least an immediate) application.
Granted that courts cannot succeed if they get too far ahead of public opinion, there is a real issue about leaving the rights of unpopular minorities to the votes of the whole population, or even to the general political process. Brown is hardly a fair test -- if only 54 percent of the whole population agreed with it, it would surely have failed if put to a vote in those parts of the country where it had a real (or at least an immediate) application.
Just a minor correction:
The state that rejected the "fertilized egg" amendment was Colorado, not California.
Just a minor correction:
The state that rejected the "fertilized egg" amendment was Colorado, not California.
If the function of the courts is only to protect suspect groups when the public is also in agreement, or soon to move in that direction, then the courts would not be needed to rule in civil rights cases -- the discriminatory laws would be struck down by the legislature with the support of the people.
The purpose of the courts is to guarantee that suspect classes of people, such as racial minorities, women, and gays, are not deprived of their fundamental rights due to the vagaries and whims of the majority. I would argue that is it precisely WHEN the public is in favor of stripping rights that the courts must intervene, and not when public opinion finally shifts in favor of equality.
If the function of the courts is only to protect suspect groups when the public is also in agreement, or soon to move in that direction, then the courts would not be needed to rule in civil rights cases -- the discriminatory laws would be struck down by the legislature with the support of the people.
The purpose of the courts is to guarantee that suspect classes of people, such as racial minorities, women, and gays, are not deprived of their fundamental rights due to the vagaries and whims of the majority. I would argue that is it precisely WHEN the public is in favor of stripping rights that the courts must intervene, and not when public opinion finally shifts in favor of equality.
I'm missing something here--how is the cause of gay marriage in California worse off than it would have been if the supreme court had not stepped in?
As it stands, the approval majority of the voters will be needed to reverse proposition 8 (by another ballot initiative). If there had never been a supreme court ruling, then gay marriage would have been possible only with the assent of the legislature, which presumably would have given its assent if, and only if, it had the approval of the majority of voters.
So either way, the advocates of gay marriage need the approval of the majority of the voters. Why is it worse that a ballot initiative is required rather than legislative action? Is it ... view full comment
I'm missing something here--how is the cause of gay marriage in California worse off than it would have been if the supreme court had not stepped in?
As it stands, the approval majority of the voters will be needed to reverse proposition 8 (by another ballot initiative). If there had never been a supreme court ruling, then gay marriage would have been possible only with the assent of the legislature, which presumably would have given its assent if, and only if, it had the approval of the majority of voters.
So either way, the advocates of gay marriage need the approval of the majority of the voters. Why is it worse that a ballot initiative is required rather than legislative action? Is it simply that ballot initiatives are more expensive?
1. There's more to judging than simply looking to public opinion polls and voting the majority will. If, as you argue, judges should do that, then there really is no need for constitutional adjudication. We could just leave it to the democratic process or elect a supreme court of pollsters. The judiciary's job is to counterbalance majoritarianism with protection of minority rights -- even if (gasp) it only coincides with the values of 49.9 percent of the public. Also, I think you underestimate the inevitable constitutional and moral conversation that is exchanged between the judiciary and the public. Some would argue that Brown was important not so much because it was approved by 54 pe ... view full comment
1. There's more to judging than simply looking to public opinion polls and voting the majority will. If, as you argue, judges should do that, then there really is no need for constitutional adjudication. We could just leave it to the democratic process or elect a supreme court of pollsters. The judiciary's job is to counterbalance majoritarianism with protection of minority rights -- even if (gasp) it only coincides with the values of 49.9 percent of the public. Also, I think you underestimate the inevitable constitutional and moral conversation that is exchanged between the judiciary and the public. Some would argue that Brown was important not so much because it was approved by 54 percent of the public, but rather because it persuaded many people that racial discrimination is unconstitutional. You could argue that the same thing happened in California (our prior anti-gay proposition garnered 63% approval), it just came up short. Or (and I think this is far more likely) it could be that the Yes on 8 folks just flat out ran a better camapaign than the No on 8 people. Unfortunately, many who would have been on the ground for No on 8 were in Nevada, New Mexico, or Colorado for Obama.
2. I disagree that the application of intermediate scrutiny to gender classifications was disasterous for women's rights. It is widely accepted that such scrutiny is more protective than strict scrutiny because it does not force courts to outlaw affirmative action programs.
"naive and overconfident blunderers"
What about those Progressives who are not in favor of same-sex marriage? See below:
No on Prop 8 is Anti-Feminist and Regressive
by Wayne Lusvardi, MSW, Pasadena, CA
As a former court protective services worker for abused and neglected children, I am in favor of Proposition 8 to ban same-sex marriage; however, I am unpersuaded by all the arguments for and against it.
The arguments in favor of the Prop 8 are overly defensive, conjectural, seemingly discriminatory and moralistic for the wrong reasons. Concern over a speculative future harm to children as the weakest members of society will not likely overcome the perception of actual discrimination against gays today in the eyes of much of t ... view full comment
What about those Progressives who are not in favor of same-sex marriage? See below:
No on Prop 8 is Anti-Feminist and Regressive
by Wayne Lusvardi, MSW, Pasadena, CA
As a former court protective services worker for abused and neglected children, I am in favor of Proposition 8 to ban same-sex marriage; however, I am unpersuaded by all the arguments for and against it.
The arguments in favor of the Prop 8 are overly defensive, conjectural, seemingly discriminatory and moralistic for the wrong reasons. Concern over a speculative future harm to children as the weakest members of society will not likely overcome the perception of actual discrimination against gays today in the eyes of much of the liberal public. Moreover, many people believe on religious and secular grounds that children should be taught not to discriminate against gays.
Conversely, the arguments against Prop 8 on the basis of injustice, unfairness and the unhappiness and social stigma inflicted on gays by denying them the sanction of marriage equally miss the mark. Gays have already mostly been granted rights and protections of quasi-marriage (power of attorney, family status for hospital visitation, benefits rollover). The social status of gay couples is essentially no different than that of anyone else who lives in an unmarried status, including widows.
The notion that progressive “change” will overcome the “centuries’ long struggle for civil rights” for gay marriage is historically myopic.
read the rest! »
The past Progressive reforms of busing in our public schools (“white flight”) and recent reform of affordable housing credit as a civil right (“sub-prime” loan foreclosures and investor wipe-outs) are tragic cases of the unintended consequences of the politicizing of “civil rights.”
If Prop 8 passes we may sadly see "straight flight" by parents, who were formerly tolerant of gays, pulling their kids out of public schools. Parents who were formerly laid back about teaching about gay rights in public schools may actually start teaching and preaching to their children the opposite at home. Needless to say, this would not further Progressivism.
The prospect of Muslim polygamous marriages proliferating in California due to rejecting Prop 8 does not seem far fetched, hysterical, or a scare tactic given the thousands of such marriages in Italy and Great Britain. Is this what we want in "Progressive" California?
Parenthetically, secularization has imposed rules of the game on religious believers, to wit: "You are completely free to live by your religion in private, but keep it out of the public sphere." Jews have embraced this public-private dichotomy because it has afforded them protection and opportunities. Protestants have also accepted this bargain somewhat less enthusiastically, albeit with the option of withdrawal by sectarianism. A problem is that Islam is not a religious faith but a system of political and social organization that does not accept the modern public-private separation and does not sanction toleration, assimilation or intermarriage. Failure to ratify Prop 8 would send a signal that the public-private arrangement between religion and modern society is over. Your private marriage and your religion would be in the public domain. This would be highly regrettable.
This is not to say that civil rights for gays have been a bad thing. To the contrary, civil rights for gays have led to social tolerance. And social tolerance has brought about gays seeking to institutionalize and stabilize their partnerships instead of the social chaos which existed previously. This is relatively a good and Progressive thing.
Notwithstanding all of the above, I have two objections to same-sex marriage which I have not been addressed in the media. One: it is anti-feminist; and two: it is regressive.
No on Prop 8 is Anti-Feminist
The word “mother” comes from the Latin word “mater” for mother. And “mater” is what matters in marriage. Marriage is unavoidably built around female sexuality and procreation. Marriage can only concern a relationship to a woman for procreation. Marriage is the opposite of concubinage, which is an involuntary relationship with a man of higher status typically in a traditional society.
A social order that doesn’t protect a woman from rape or incest or concubinage can’t give women freedom to control who the father(s) of their children are, or their own bodies, or even their own health (re: John Stuart Mill). Marriage is the structure of this freedom of choice for women in a modern society. Women’s freedom to control access to their body for procreation is what modern marriage is all about. Without that there is no societal or religious basis for laws to protect marriage, particularly gay marriage.
Defining marriage down to a mere contract between companions or non-procreative sex partners will only end up harming all women for if everyone can marry, no one needs to and it becomes meaningless. Women will ultimately suffer most. Gay marriage robs something that belongs exclusively to women. Traditional man-woman marriage is not anti-gay, it is pro-feminine.
Same sex marriage as currently proposed without strictures against polygamy, arranged marriages, and under-age marriages (or even contrived Oedipal marriages between an adult child and their parent for medical insurance coverage) would likely result in something anti-feminist and socially and politically Regressive. Modernity has liberated gays from discrimination but it has also led to a yearning to overcome the alienation and psychological "homelessness" that accompanies modernity. Same-sex marriage can thus be seen as a counter-modern movement (Peter Berger, et. al. The Homeless Mind).
A pro-feminine position would perhaps look favorably on gay marriage for lesbians, given that artificial insemination plus married lesbians would equal women with control of and a support structure for procreation. And lesbian couples have a lower level of failure than heterosexuals or male homosexuals.
No on Prop 8 is Regressive
My second objection to a No Vote on Prop 8 and the unthinking race to embrace gay marriage is that it is politically regressive and will violate the successful social contract of tolerance that has been built in our society.
Up to now there has been an absence of passion about opposing same sex marriage. The attitude of most of the majority public is reflected in the popular joke: "Same-sex marriage? Sure: Welcome to the joys of alimony!" Most Americans have gravitated to look at homosexuality as something to be avoided wherever possible. But they are tolerant toward homosexuals and have conceded them all sorts of rights, even superior rights and sinecures in the workplace, as long as they do not usurp the traditional meaning and sanctity of marriage. This social tolerance contract has now been abrogated by the California Supreme Court.
There is no guarantee that ending this social tolerance contract will be a good thing. In all likelihood, it will result in tragic and regressive unintended consequences. The negative consequences of gay marriage, as presently left vague and open, are as predictable as those who foretold the coming disaster of our financial institutions in 2004 (see: Mark C. Taylor, Confidence Games: Money and Markets in a World Without Redemption).
Sociology, Not Theology
I suspect the reason that I find the arguments on both sides of California's Prop 8 so unpersuasive is that what separates people on this issue is not ideology or theology but sociology. Those in the professional class (law, education, media, and liberal clergy serving the professional class) are predominantly in favor of same-sex marriage and oppose Prop 8; and those in the commercial and working classes and the military (and their clergy) oppose gay marriage and favor the protection of marriage under Prop 8. (If this means anything, my carpenter is gay and is opposed to Prop 8).
There seems to be no way to transcend this social division given that both Christianity and Judaism are captured by social class and culture and have been unable to articulate a middle ground theology (theodicy) of toleration and marriage in a modern context (see Berger and Berger: The War Over the Family: Capturing the Middle Ground, 1983).
There is another possible sociological reason that there is so much conflict over this issue: many of the clergy leading the campaign for gay marriage are gay; conversely many of the clerical opponents of gay marriage are straights. Demagoguery, self interest and fund raising seem to reign supreme and we are left without religion to transcend social divisions and bring about reconciliation. Churches and synagogues that are nothing more than social clubs will be used as social “clubs.”
If we willy nilly grant marriage rights to one group - gays - we will find it politically impossible to deny such rights to others scripted with their own resumes of "victimization." And politicians will always be ready to politicize modern marriage by expanding it beyond its original purpose.
Marriage isn’t a conspiracy of patriarchs, straights, or the respectable capitalistic bourgeoisie class. It is part of the divine and natural order – only through marriage can the world and social order persist. And it is also part of the larger social contract of modern society.
It is more important to exclusively preserve the freedom of marriage for women at this time than to throw out the social tolerance contract with nothing to replace it but backlash and a social order built around an anti-American notion of social “pillarization” as found in the Dutch social model. Preserving marriage exclusively for procreation and women's freedom transcends the politics and religion of Left and Right and is the most Progressive option at this time until a consensus about marriage can be agreed upon.
Even though I am disappointed with the arguments both for and against Prop 8, I nonetheless urge you to VOTE YES ON PROP 8 as the Feminist and Progressive option at this time.
What about Progressives who are not in favor of same-sex marriage?
Please read "NO ON (CALIFORNIA) PROP 8 IS ANTI-FEMINIST AND REGRESSIVE" at WindsofChange.net, November 4, 2008.
I would provide a direct link but I am unsure whether the webmaster permits posting such for security reasons.
What about Progressives who are not in favor of same-sex marriage?
Please read "NO ON (CALIFORNIA) PROP 8 IS ANTI-FEMINIST AND REGRESSIVE" at WindsofChange.net, November 4, 2008.
I would provide a direct link but I am unsure whether the webmaster permits posting such for security reasons.
What's shocking about the passage of prop. 8 was who passed it - black people. The exit polls showed that 70 percent of black voters voted to pass prop. 8. All other demographics were near or above 50 percent. It was black voters, with their overwhelming support for this nasty piece of bigotry, who pulled prop. 8 over the finish line. This, for me, is where gay people part ways with the black community. If they can't support our civil rights, we shouldn't support theirs. Having our rights stripped away from us by rednecks is one thing. Having blacks join with racists to do it is something else entirely.
What's shocking about the passage of prop. 8 was who passed it - black people. The exit polls showed that 70 percent of black voters voted to pass prop. 8. All other demographics were near or above 50 percent. It was black voters, with their overwhelming support for this nasty piece of bigotry, who pulled prop. 8 over the finish line. This, for me, is where gay people part ways with the black community. If they can't support our civil rights, we shouldn't support theirs. Having our rights stripped away from us by rednecks is one thing. Having blacks join with racists to do it is something else entirely.
The ballot question about fertilized eggs was in Colorado, not CA.
The ballot question about fertilized eggs was in Colorado, not CA.
Rosen and Just differ over strategy, but they are clones about the merits. What they miss, in their Jacobin dogmatism, and what the the gay marriage advocates miss, in their terminal mendacity, is that there are millions of people, just as intelligent and informed as they, who do not base their opposition to gay marriage on either scripture or homophobia. Begging the question of whether domestic partnership laws which enumerate privileges and immunities of gay couples render gay marriage moot as a civil rights issue, the gay marriage advocacy relies on sentiment and spurious civil rights claims to peddle their cause. And millions of intelligent,, humanistic people see through the shirt re ... view full comment
Rosen and Just differ over strategy, but they are clones about the merits. What they miss, in their Jacobin dogmatism, and what the the gay marriage advocates miss, in their terminal mendacity, is that there are millions of people, just as intelligent and informed as they, who do not base their opposition to gay marriage on either scripture or homophobia. Begging the question of whether domestic partnership laws which enumerate privileges and immunities of gay couples render gay marriage moot as a civil rights issue, the gay marriage advocacy relies on sentiment and spurious civil rights claims to peddle their cause. And millions of intelligent,, humanistic people see through the shirt rending and street disco. It's why Californians can vote for both Obama and for Prop. 8. Even now the screechers are picketing the Mormons, under the delusion that it was Mormon money that made Prop. 8 succeed. In fact, Prop. 8 would have won by an even wider margin had the Republican base been excited enough about their ticket to go to the polls and vote for Prop 8 along with their candidates. For example, Orange Country had a dismal turnout, while neighboring L.A. County set a record. Same with the Central Valley. And neither the OC nor the Central Valley is geriatric. And the black vote, which came out so heavily for Obama, came out just as heavily FOR Prop. 8. Both of these realities bely Rosen's claim that demographics make gay marriage inevitable. In fact, the very same constituency to which Rosen and Just devote so much of their sanctimony, in other forums, is the very same constituency which is foursquare against gay marriage, regardless of voter age profile. Gay marriage is trivial to all except those for whom melodrama is morality. It's what helps define this fatuous age.
Interesting analysis Jeff, but I find myself asking: "how long do we wait for the next generation to reach political maturity and make its preferences felt?" The seemingly progressive generation that brought so many changes in the 1960s appeared to create a new dawn for LGBT Americans during the 1970s, that period prove too short lived in the face of Anita Bryant, Ronald Reagan and then AIDS. Political changes can quickly close a door shut for a generation or longer, but when courts act they can provide a life raft to those in need, despite continuing backlash Miranda, Mapp, etc. still have some steam in them. I'd rather fight it out in the courts over the medium term than lose definitively ... view full comment
Interesting analysis Jeff, but I find myself asking: "how long do we wait for the next generation to reach political maturity and make its preferences felt?" The seemingly progressive generation that brought so many changes in the 1960s appeared to create a new dawn for LGBT Americans during the 1970s, that period prove too short lived in the face of Anita Bryant, Ronald Reagan and then AIDS. Political changes can quickly close a door shut for a generation or longer, but when courts act they can provide a life raft to those in need, despite continuing backlash Miranda, Mapp, etc. still have some steam in them. I'd rather fight it out in the courts over the medium term than lose definitively in the political process while waiting for the majority to come around. In the long run, we're all dead.
I look forward to reading the rest of this exchange.
What you and the judges all fail to recognize is that this isn't a rights issue at all. This is an issue about changing an institution (which some could correctly argue is a reglious instution that should be outside the hands of the government). Gays are still allowed the same opportunity as anyone else in California to be married to someone of the opposite sex if they so choose.
What you and the judges all fail to recognize is that this isn't a rights issue at all. This is an issue about changing an institution (which some could correctly argue is a reglious instution that should be outside the hands of the government). Gays are still allowed the same opportunity as anyone else in California to be married to someone of the opposite sex if they so choose.
This article misspells "their" and "they're." As far as I'm concerned, that alone discredits its views
This article misspells "their" and "they're." As far as I'm concerned, that alone discredits its views
I think you can make the case that it is unlikely that gay marriage would be legal anywhere without judicial action. It is legal in Massachusetts, which defeated an attempt to change the constitution like California did (it is much harder to amend the constitution in MA) and also in Connecticut, and it is effectively legal in New York and Rhode Island (where one only needs to cross the border into CT and return and have that marriage recognized). Certainly the California vote is an enormous setback, as are the votes elsewhere in the country. But if there is as much progress in the next eight years as in the last eight years as far as public opinion is concerned, gay marriage will appear n ... view full comment
I think you can make the case that it is unlikely that gay marriage would be legal anywhere without judicial action. It is legal in Massachusetts, which defeated an attempt to change the constitution like California did (it is much harder to amend the constitution in MA) and also in Connecticut, and it is effectively legal in New York and Rhode Island (where one only needs to cross the border into CT and return and have that marriage recognized). Certainly the California vote is an enormous setback, as are the votes elsewhere in the country. But if there is as much progress in the next eight years as in the last eight years as far as public opinion is concerned, gay marriage will appear not only in CA but in many other places as well. I think the judges have been ahead of the curve, particularly in CA, but they also moved the issue forward and forced parts of America to deal with it. I think it would have been very risky and unlikely for legislators to do so on their own initiative, even in deep blue states. I see the glass as half full in this respect.
Another thing to consider: while I certainly understand that judges do not live in a vacuum and are aware of and sensitive to public opinion, it seems like they should be just as sensitive to their true beliefs about what the law and the constitutions require. In other words, even if CA judges thought the public might not be ready, I think they still have an obligation to issue a ruling if they are absolutely convinced that it is the right ruling. I suspect that some of them at least were far more concerned about being right - and being right in the eyes of history - than making people happy. And I think that history will vindicate them.
I voted FOR Prop 8 primarily because it bothered me that judges took it upon themselves to overrule the will of the voters. Why bother to vote at all if judges can render my vote worthless.
I voted FOR Prop 8 primarily because it bothered me that judges took it upon themselves to overrule the will of the voters. Why bother to vote at all if judges can render my vote worthless.
I was not in Calif. for this process so only know second hand what happened in this process. The initiative was way behind in the polls early on and stayed that way for most of the duration of the campaign until the last several months. It was quite apparent that the vote would probably go against this initiative. In the closing months there was an enourmous influx of money and campaign effort injected into this proposition by the far right religious groups, mainly headed by the mormons with directives from the church headquarters in Utah. Virtually millions of dollars were spent by the church from its headquarters in Utah to pass this anti-gay initiative in Calif. Other far right religi ... view full comment
I was not in Calif. for this process so only know second hand what happened in this process. The initiative was way behind in the polls early on and stayed that way for most of the duration of the campaign until the last several months. It was quite apparent that the vote would probably go against this initiative. In the closing months there was an enourmous influx of money and campaign effort injected into this proposition by the far right religious groups, mainly headed by the mormons with directives from the church headquarters in Utah. Virtually millions of dollars were spent by the church from its headquarters in Utah to pass this anti-gay initiative in Calif. Other far right religious groups such as the Baptist joined in this effort with a tremendous amount of money pouring into this effort from out of state. The mormons even set up huge phone bank efforts through their BYU students at Provo Utah to call everyone they knew, particularly any and all mormons in Calif. to support the initiative. But the calls were not limited to just Calif. mormons in this effort. There were also bus and car caravans sent by the mormons throughout the state of Calif. to campaign for this initiative. It became one of the most expensively funded initiatives ever in any state and much of that money poured into Calif. from out of state to influence the outcome to the very anti-gay bias held by the mormon church. Clearly the mormons operating our of Utah were the ring leaders in this effort which dramatically changed the outcome of this vote late in the game. Without this heavily out of state financed campaign, the outcome on this vote would have been dramatically different.
Ironically, this church has as it's origin it's own strange view of devine marriage as polygamist, In fact the members of this church were persecuted and driven from city to city in the early eastern states to finally reside in the desolate U.S. territory of Utah area where they could practice polygamy without being hassled for many years. In the late 1800's the U.S. Army was finally sent to put an end to this polygamist cult as the borders of the U.S. were now expanding westward, With the U.S. Army camped outside Salt Lake City ready to make their assault, the leader of the church suddenly had a revelation from God that polygamy was no longer to be practiced by it's members. The majority of the members went along with this new revelation but many did not and fled to Canada and Mexico, and some into the badlands of Arizona and New Mexico (the Romney clan from which Mitt Romney comes). Several splinter groups organized themselves into actual church organizations and many remain practicing polygamist churches to this day as per recent news items. The main body of the original church in Salt Lake City stopped the actual practice of polygamy but it remains to this day a central principle of their doctrine. If a wife dies, the husband can remarry and have his second or even subsequent wife actually married and sealed to him as his second or third wife for all eternity in the temple marriage ceremony. In the hereafter he will have all of these women as his wives.
I bring this point up simply to point out the grand hypocrisy of this church on this marriage issue. With polygamy as its founding practice and still an essential element in its current doctrine, it is beyond the pale that this church would inject itself to this degree from Utah into the politics of California, claiming to be the stewards of God's view of "traditional marriage".
I am absolutely convinced that had the Utah mormons stayed out of this California initiative it would have failed to pass by a significant margin and the decision of the California Supreme Court would have been vindicated by the vote. Such an outcome would make the above article mute.
I am personally very disturbed at this outrageous intrusion of the mormon church in Utah into the politics of California. They of course have every right to advise their members how to vote. But even on that level, there was a great deal of heavy handed arm twisting and coercion on its memers to not only vote for this initiative but to particpate in this campaign. Those who disagreed with the official church position were under extreme pressure to conform and obey. But the campaign waged on this initiative went way beyond those sensible boundaries of both separation of church and state as well as the intrusion of the political views from one state into the politics of another. Hopefully this will be fully exposed when the whole story is told on how this initiative suddenly turned from going down to defeat to being passed after this massive intrusion of millions of dollars and massive phone bank campaign efforts from Utah.
I'm sure you would hear a huge complaint coming from all Utah and particularly from the mormon church headquarters in Salt Lake City if another state or some outside religious or political group intruded itself into Utah politics they way this has happened to California.
Cloy Jenkins
Meanwhile, in CT, Pfizer is importing more foreign workers in, forcing American workers to train their lesser skilled, less educated, cheaper foreign replacements, and the corporation will move the entirity of it's IT and other dept's to India. In Ohio, federal agents seized dangerous heparin, that was contaminated with life threatening ingredients, some of which were from sick animals, from China..
That doesn't really matter to the PTB, gay "marriage" in their opinion should be able to violate the separation of church and state, because that's what the wealthiest want. The establishment of a precedent that violates the US Constitution. It's the reason PG&E gave more than a quarter millio ... view full comment
Meanwhile, in CT, Pfizer is importing more foreign workers in, forcing American workers to train their lesser skilled, less educated, cheaper foreign replacements, and the corporation will move the entirity of it's IT and other dept's to India. In Ohio, federal agents seized dangerous heparin, that was contaminated with life threatening ingredients, some of which were from sick animals, from China..
That doesn't really matter to the PTB, gay "marriage" in their opinion should be able to violate the separation of church and state, because that's what the wealthiest want. The establishment of a precedent that violates the US Constitution. It's the reason PG&E gave more than a quarter million dollars to defeat Prop 8.
Melissa Etheridge, Dan Savage, Andrew Sullivan post hateful, racist invective, and feel entitled to commit what are hate crimes, because they feel that those they perceive as lesser than themselves, should have submitted to being used by them.
Marty sure is an idiot. He's presiding over what will be as dangerous and threatening as the nazi rise to power, and like those back in pre-war Germany, can't be bothered to think beyond what's good for his profit margin.
All these articles that blame the approach using the courts to try to advance equal marriage ALWAYS seem to ignore the fact that the people did speak through the legislature to legalize same sex marriage in CA. And the governor vetoed it, stating that it should be decided by the courts.
Thank you, straight America for banning the legislative process and then telling us we should use the legislative process. Pretend that there was a reasonable way to achieve our ends. The fact of the matter was that the CA Supreme Court, the legislature, AND the governor support same sex marriage. But the Mormons don't, and apparently that is good enough. Hope you all are ready to go live your lives accord ... view full comment
All these articles that blame the approach using the courts to try to advance equal marriage ALWAYS seem to ignore the fact that the people did speak through the legislature to legalize same sex marriage in CA. And the governor vetoed it, stating that it should be decided by the courts.
Thank you, straight America for banning the legislative process and then telling us we should use the legislative process. Pretend that there was a reasonable way to achieve our ends. The fact of the matter was that the CA Supreme Court, the legislature, AND the governor support same sex marriage. But the Mormons don't, and apparently that is good enough. Hope you all are ready to go live your lives according to Mormon teachings too.
But did the courts have a choice, faced with the constitutional issue in their states? I don't think so.
But did the courts have a choice, faced with the constitutional issue in their states? I don't think so.
The simple fact is the collection of signatures for Prop 8 was well underway before the Supreme Court of California delivered its opinion, rendering this argument pretty much meaningless. That is unless you think it would have been easier to beat 8 without 20 thousand same-sex marriages to point to.
The simple fact is the collection of signatures for Prop 8 was well underway before the Supreme Court of California delivered its opinion, rendering this argument pretty much meaningless. That is unless you think it would have been easier to beat 8 without 20 thousand same-sex marriages to point to.
The issue here is equal protection under the law. the public cannot simply remove a class of citizens from the protections of the constitution by majority vote. Who's next? Atheists, Hindus, the physically challenged, Slavs, Jews..... You see what I mean? Remember Manzanar? Yes, that's right, the Japanese internment during WW II. Jim Crow? Laws banning inter racial marriage, like the one that produced our president elect?
The issue here is equal protection under the law. the public cannot simply remove a class of citizens from the protections of the constitution by majority vote. Who's next? Atheists, Hindus, the physically challenged, Slavs, Jews..... You see what I mean? Remember Manzanar? Yes, that's right, the Japanese internment during WW II. Jim Crow? Laws banning inter racial marriage, like the one that produced our president elect?
Amen to what Chris said.
Amen to what Chris said.
I can't believe anyone will wade through Wayne's lenghty and meandering post, but I skimmed and noted this: "The social status of gay couples is essentially no different than that of anyone else who lives in an unmarried status, including widows." Wow, that is pretty insulting! My partner and I were married in San Francisco on November 4. We didn't and don't consider ourselves and our relationship to be akin to living as "widows." Please. That's the sort of insulting thing that gays have always dealt with - their orientation is akin to alcoholism etc. Just shows how far we still have to go to secure our rights against such asinine prejudices.
I can't believe anyone will wade through Wayne's lenghty and meandering post, but I skimmed and noted this: "The social status of gay couples is essentially no different than that of anyone else who lives in an unmarried status, including widows." Wow, that is pretty insulting! My partner and I were married in San Francisco on November 4. We didn't and don't consider ourselves and our relationship to be akin to living as "widows." Please. That's the sort of insulting thing that gays have always dealt with - their orientation is akin to alcoholism etc. Just shows how far we still have to go to secure our rights against such asinine prejudices.
I'm not an expert on the CA situation, but from what I know, Gex is right. Well, possibly not about the Mormon thing, but about the fact that gay marriage was already legalized democratically, by the CA legislature. The governor was very un-Republican in asking for a judicial fiat in the first place - I don't know why he did so; he should have left it alone.
I'm not an expert on the CA situation, but from what I know, Gex is right. Well, possibly not about the Mormon thing, but about the fact that gay marriage was already legalized democratically, by the CA legislature. The governor was very un-Republican in asking for a judicial fiat in the first place - I don't know why he did so; he should have left it alone.
As a side note, can I ask, why are so many otherwise left-leaning people against gay marriage? I myself lean right on many social issues, such as abortion and euthanasia, but gay marriage bothers me not one whit. But I knew at least three people, all of them young and two of them strongly pro-choice, who in '04 voted both for John Kerry and Ohio's constitutional ban on gay marriage; they did not give me any satisfactory reasons for this. And I hear that it was the high turnout of pro-Obama black voters that helped carry Prop 8 to victory in CA. Why? How did they not associate it with anti-miscegenation laws? Can someone help me square this circle?
As a side note, can I ask, why are so many otherwise left-leaning people against gay marriage? I myself lean right on many social issues, such as abortion and euthanasia, but gay marriage bothers me not one whit. But I knew at least three people, all of them young and two of them strongly pro-choice, who in '04 voted both for John Kerry and Ohio's constitutional ban on gay marriage; they did not give me any satisfactory reasons for this. And I hear that it was the high turnout of pro-Obama black voters that helped carry Prop 8 to victory in CA. Why? How did they not associate it with anti-miscegenation laws? Can someone help me square this circle?
Wayne -
One: it is anti-feminist; and two: it is regressive. No on Prop 8 is Anti-Feminist The word "mother" comes from the Latin word "mater" for mother. And "mater" is what matters in marriage. Marriage is unavoidably built around female sexuality and procreation. Marriage can only concern a relationship to a woman for procreation.
And this is where your argument falls flat on it's face - post menopausal hetero marriages are legal.If procreation were the overwhelming factor in ALL marriages then so be it. BTW, marriage was a contract between homonids that bacially said - I'll have your children if you give me food - we've progressed beyond that in case you haven't noticed.
Wayne -
One: it is anti-feminist; and two: it is regressive. No on Prop 8 is Anti-Feminist The word "mother" comes from the Latin word "mater" for mother. And "mater" is what matters in marriage. Marriage is unavoidably built around female sexuality and procreation. Marriage can only concern a relationship to a woman for procreation.
And this is where your argument falls flat on it's face - post menopausal hetero marriages are legal.If procreation were the overwhelming factor in ALL marriages then so be it. BTW, marriage was a contract between homonids that bacially said - I'll have your children if you give me food - we've progressed beyond that in case you haven't noticed.
Rosen completely ignores the legal issues involved. For him, principle has got nothing to do with constitutional adjudication. It's all political, he says. In so doing, he makes a mockery of the widely-shared commonsensical notion that judges ought to, in some plausible sense, follow the law. He needs to put some clothes on his naked pragmatism. ***** But, let's put that aside. What about this strategy question? I am with Jake above who observes that it's as easy to put a pro-gay-rights measure on a ballot as it is to put an anti-gay-rights measure on one. I have little doubt that most of these amendments -- particularly California's, where it is quite easy to change the constitution ... view full comment
Rosen completely ignores the legal issues involved. For him, principle has got nothing to do with constitutional adjudication. It's all political, he says. In so doing, he makes a mockery of the widely-shared commonsensical notion that judges ought to, in some plausible sense, follow the law. He needs to put some clothes on his naked pragmatism. ***** But, let's put that aside. What about this strategy question? I am with Jake above who observes that it's as easy to put a pro-gay-rights measure on a ballot as it is to put an anti-gay-rights measure on one. I have little doubt that most of these amendments -- particularly California's, where it is quite easy to change the constitution -- will be undone eventually. In the meantime, as others have observed, gay rights advocates have made very real progress: They get courts across this country to officially pronounce that equal rights for gays are commanded by our most cherished principles. This is important symbolically, even if voters reject it. It puts these arguments in the air, it adds to the march. The path of progress on an issue like this isn't necessarily clear. As Rosen acknowledges, a few votes the other way on Prop. 8, and he would have to eat it. In any event, one shouldn't tremble at the prospect of a reversible setback. Moreover, the progress is not limited to symbolism. Gays can now legally marry in parts of this country. That's pretty important. The Rosen approach would have put that day off for God knows how long -- until polls showed overwhelming support for gay marriage? One of the best arguments for gay marriage is that *it's happening* and the sky isn't falling. Courts took the lead there, as they did on civil rights, and they can contribute toward the momentum that Rosen would have us simply sit around and wait for.
In my opinion as a current child welfare worker for children with special needs and developmental disabilities, I am in favor of declaring that Wayne Lusvardi's arguments are idiotic boilerplate without a shred of human decency or genuinely cogent thought attached to them.
Gex is absolutely right: The state legislature passed a measure overturning Proposition 22 and declaring gay marriage. Our Governator-in-Chief vetoed the measure, declaring that the state Supreme Court should rule on the constitutionality of the matter. The State Supreme Court did rule. And so the constitution was revised (or amended, depending on how the courts rule on the process and language; a revision can be struc ... view full comment
In my opinion as a current child welfare worker for children with special needs and developmental disabilities, I am in favor of declaring that Wayne Lusvardi's arguments are idiotic boilerplate without a shred of human decency or genuinely cogent thought attached to them.
Gex is absolutely right: The state legislature passed a measure overturning Proposition 22 and declaring gay marriage. Our Governator-in-Chief vetoed the measure, declaring that the state Supreme Court should rule on the constitutionality of the matter. The State Supreme Court did rule. And so the constitution was revised (or amended, depending on how the courts rule on the process and language; a revision can be struck down) to strike basic rights affirmed by the arbiters of meaning and intent of the state constitution.
I find arguments against using the courts in civil rights matters spurious; oppressed people should wait until the oppressors are sufficiently thinned out before attempting to right an injustice? That's wanton horse hockey parading around in thigh-highs and a skirt.
Oh, and while I'm at it? "And millions of intelligent,, humanistic people see through the shirt rending and street disco." Those last two words put the lie to the "intelligent" and "humanistic" in that sentence. "Gays are still allowed the same opportunity as anyone else in California to be married to someone of the opposite sex if they so choose." And in Virginia in the '50s, white men couldn't marry black women, so what was the problem if a black man couldn't marry a white woman? Idiot.
James F. Elliott, M.S.W., ACSW
The mormons in utah are more powerful than even I suspected. I wouldn't be surprised to find out that they are involved in secretly shipping young virgins to the motherland for deviant sexual practices. Or that they are behind the fluoridation of our drinking supply.
The mormons in utah are more powerful than even I suspected. I wouldn't be surprised to find out that they are involved in secretly shipping young virgins to the motherland for deviant sexual practices. Or that they are behind the fluoridation of our drinking supply.
The so-called right for gays to marry was invented out of thin air by judges. The people had to step forward and correct that anti-democratic usurpation, and they did.
The so-called right for gays to marry was invented out of thin air by judges. The people had to step forward and correct that anti-democratic usurpation, and they did.
Initially, I think President Obama will have to give some token to the gay community because of their support for his candidacy. This will probably be something politically safe, such as hospital visitation rights for a partner. Anyone who opposes allowing someone to visit the person with whom they've lived for 20 years in the hospital will be (rightfully) seen as mean-spirited.
Next will be some language excluding Domestic Partner health benefits from taxation. They are currently taxed as income, but not for spouses. This will probably be generic language, stating that all health insurance benefits are non-taxable. Again, this is reasonably safe politically, I don't think a majority favor ta ... view full comment
Initially, I think President Obama will have to give some token to the gay community because of their support for his candidacy. This will probably be something politically safe, such as hospital visitation rights for a partner. Anyone who opposes allowing someone to visit the person with whom they've lived for 20 years in the hospital will be (rightfully) seen as mean-spirited.
Next will be some language excluding Domestic Partner health benefits from taxation. They are currently taxed as income, but not for spouses. This will probably be generic language, stating that all health insurance benefits are non-taxable. Again, this is reasonably safe politically, I don't think a majority favor taxing health benefits in any form. It certainly didn't go over well when McCain proposed it.
The way I see this ultimately playing out is that there will be a potpourri of benefits available to Domestic Partners, but not all the rights of marriage.
Eventually, businesses will tire of the added expense of tracking everything for Domestic Partners separately (currently it's somewhat of an accounting nightmare, particularly if you do business in multiple states/cities with various Domestic Partner laws) and there will be some type of Civil Union which is the equivalent of "marriage".
What a stupid comment.
What a stupid comment.
Has anyone ever read the debates on the constitution? One of the big concerns was that there was nothing about rights for individuals. That is why the Bill of Rights was passed almost immediately afterwards. They were very concerned about the tyranny of the majority against the rights of the minority. The courts are exactly the place this should be decided, not by majority rule. Have you thought through what happens when the repeal is voted on in CA in a couple years and it wins and then two years later it is put on the ballot again and loses. That is ridiculous. No one should be allowed to vote on what rights others should have.
Has anyone ever read the debates on the constitution? One of the big concerns was that there was nothing about rights for individuals. That is why the Bill of Rights was passed almost immediately afterwards. They were very concerned about the tyranny of the majority against the rights of the minority. The courts are exactly the place this should be decided, not by majority rule. Have you thought through what happens when the repeal is voted on in CA in a couple years and it wins and then two years later it is put on the ballot again and loses. That is ridiculous. No one should be allowed to vote on what rights others should have.
I am not gay and do not really give a hoot about same sex marriages.
My concern is about freedom. I just can not figure out how we can have freedom and let religion continue to demand laws that limit freedom according to their beliefs. It seems to me that true freedom of religion must include freedom from religious laws.
I am not gay and do not really give a hoot about same sex marriages.
My concern is about freedom. I just can not figure out how we can have freedom and let religion continue to demand laws that limit freedom according to their beliefs. It seems to me that true freedom of religion must include freedom from religious laws.
The exit polls patiently state one message" patience. Younger voters overwhelmingly supported marriage equality. Eight years ago, Prop 22, the original ban, passed with 61% of the vote and Prop 8 just passed with only 52% of the vote. It is a setback, not the end-all, and proponents of equal rights are certain to win in five or ten years as the social landscape continues to shift.
Everyone is convince gay couples will eventually have equal rights. It is just a matter of when.
The exit polls patiently state one message" patience. Younger voters overwhelmingly supported marriage equality. Eight years ago, Prop 22, the original ban, passed with 61% of the vote and Prop 8 just passed with only 52% of the vote. It is a setback, not the end-all, and proponents of equal rights are certain to win in five or ten years as the social landscape continues to shift.
Everyone is convince gay couples will eventually have equal rights. It is just a matter of when.
The idea that courts should only approve "popular" ideas is fantasy and folly. The courts consistently upheld slavery and the rights of slaveholders. These ideas were popular in their times. You fail to understand that the courts were trying to protect the rights of a minority. Rights are not won by popularity--they are protections guaranteed by law. Legislating counter-arguments against equal protection in CA was not something that should have been open for voter approval or disapproval.
The idea that courts should only approve "popular" ideas is fantasy and folly. The courts consistently upheld slavery and the rights of slaveholders. These ideas were popular in their times. You fail to understand that the courts were trying to protect the rights of a minority. Rights are not won by popularity--they are protections guaranteed by law. Legislating counter-arguments against equal protection in CA was not something that should have been open for voter approval or disapproval.
"...now that pro-choice advocates have stopped hiding behind overly expansive readings of Roe v. Wade and have been forced to fight they're battles in the political arena, they're more than capable of defeating their pro-life opponents."
*cough* **THEIR battles** *cough*
"...now that pro-choice advocates have stopped hiding behind overly expansive readings of Roe v. Wade and have been forced to fight they're battles in the political arena, they're more than capable of defeating their pro-life opponents."
*cough* **THEIR battles** *cough*
I voted for Prop 8 to restore the traditional, universally accepted definition of the institution of marriage. By definition, there can be no "marriage equality" -- an interesting term being used in the GLT community. If the "domestic partner" entity (which in CA grant GL couples the same legal rights afforded to heterosexual married couples) does not get it done, it is then up to the Gay & Lesbian community to work with their legislators and create a new institution with a unique name that defines the committed union of two men or two women, and all the legal ramifications involved. From the "traditionalist" perspective, it is the move to "expand" or "redefine" the well-understood ins ... view full comment
I voted for Prop 8 to restore the traditional, universally accepted definition of the institution of marriage. By definition, there can be no "marriage equality" -- an interesting term being used in the GLT community. If the "domestic partner" entity (which in CA grant GL couples the same legal rights afforded to heterosexual married couples) does not get it done, it is then up to the Gay & Lesbian community to work with their legislators and create a new institution with a unique name that defines the committed union of two men or two women, and all the legal ramifications involved. From the "traditionalist" perspective, it is the move to "expand" or "redefine" the well-understood institution of marriage that is troublesome, as there is no historical basis for doing so, save for the actions of activist judges.
I think this article misunderstands why people voted YES. No one cared about the devils in black robes overruling the will of the people. If you talked to people you would learn that no one (except a few lawyer-types) saw it as an issue of curbing judicial activistm.
I think this article misunderstands why people voted YES. No one cared about the devils in black robes overruling the will of the people. If you talked to people you would learn that no one (except a few lawyer-types) saw it as an issue of curbing judicial activistm.
Paul M,
People use the phrase "traditional, universally accepted deintition of the institution of marriage" to mean something that is anything but traditional or universally accepted.
As for tradition, marriages in the Bible were often polygamous and such marriage were not condemned. Abraham, father of the Jewish, Christian, and Muslim faiths, was himself a polygamist, for example.
As for universal acceptance, marriage in modern American society, which many see as a proclamation of true and undying love is a relatively novel concept. Marriage was never about love. It was about societal role, economic sustainability, and filial piety. If you want traditional marriage, you would want arra ... view full comment
Paul M,
People use the phrase "traditional, universally accepted deintition of the institution of marriage" to mean something that is anything but traditional or universally accepted.
As for tradition, marriages in the Bible were often polygamous and such marriage were not condemned. Abraham, father of the Jewish, Christian, and Muslim faiths, was himself a polygamist, for example.
As for universal acceptance, marriage in modern American society, which many see as a proclamation of true and undying love is a relatively novel concept. Marriage was never about love. It was about societal role, economic sustainability, and filial piety. If you want traditional marriage, you would want arranged marriages that have predominated over the centuries and still exist in many cultures. Indeed, there is nothing universal about a man simply marrying the woman he loves.
"The word 'mother' comes from the Latin word 'mater' for mother."
Since this has been repeated multiple times, I've gotta set it straight (no pun intended). "Mother" does not come from "mater" because English is not a Romance (descended from Latin) language. English is a Germanic language. So English "mother" is more closely related to German "Mutter." All of these words (English, Latin, and German) are descended from the same Indo-European root, which predates the Latin language.
KWC: "As for universal acceptance, marriage in modern American society, which many see as a proclamation of true and undying love is a relatively novel concept."
True and undying love is not part of the legal defi ... view full comment
"The word 'mother' comes from the Latin word 'mater' for mother."
Since this has been repeated multiple times, I've gotta set it straight (no pun intended). "Mother" does not come from "mater" because English is not a Romance (descended from Latin) language. English is a Germanic language. So English "mother" is more closely related to German "Mutter." All of these words (English, Latin, and German) are descended from the same Indo-European root, which predates the Latin language.
KWC: "As for universal acceptance, marriage in modern American society, which many see as a proclamation of true and undying love is a relatively novel concept."
True and undying love is not part of the legal definition of marriage today, either. There was no "are you in true and undying love?" box on my application for a marriage license. But marriage including a man and a woman was part of the definition, and always has been.