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How Not To Fix Prop 8

I hate to say this, but I'm not a fan of a key piece of the challenge to Proposition 8 that same-sex marriage advocates are bringing in the California Supreme Court. By all means, ask the court to recognize the 18,000 same-sex marriages performed since it ushered in legalization last June. Laws shouldn't change retroactively, with marriages approved by the state one day and shunned the next. It's true that this case doesn't fit perfectly into the constitutional doctrine based on what's called the ex post facto clause, which prevents laws from changing up on people after the fact. (That's because traditionally, ex post facto applies to criminal laws.) But if ever there was a time for expanding that doctrine, for fairness' sake, this is it.

 The part of the court challenge that makes me skittish is the claim that Prop 8 is simply unconstitutional because it's a major revision to California's constitution, instead of just an amendment, and so the legislature has to separately approve it. This sounds like legal jabber (a revision vs. an amendment--huh?), and I fear that the political price for a ruling like this would be too high. Last summer, the state supreme court took a big step by legalizing same-sex marriage. Now, like it or not, the voters have rejected that ruling. I'm not a fan of state referenda--they make it way too easy to pass bad laws, and California has suffered from them in the past. (Remember Prop 13, which decimated school funding?) But if you have a referendum system, you have to live with it. Or at least you don't turn to the branch of government farthest from the will of the electorate to overturn a law born of the process that's closest to the will of the government. To get out of the Prop 8 fix, California needs another amendment that reverses it. The current challenge is the right battle, but the wrong tactic.
 

Marriage, Interrupted

I admit that lately I've been thinking more about clothes (and their symbolism) than issues, but in today's New York Times longtime religion reporter Laurie Goodstein writes about the various religious leaders descending on California in support of Proposition 8, a measure that would change the California Constitution to state "only marriage between a man and a woman is valid or recognized in California," and reading it, I was jolted right back into the fray.

Back in 2004, campaigns against gay marriage were nearly as central to the Republican strategy as the Swift Boat smears and the Neiman Marcus/Saks shopping-spree-style stories of the day—like John Kerry's ill-timed windsurfing trips.That year the 11 state ballot initiatives banning same-sex marriage—all of which passed—were widely believed to be a key element in Karl Rove's strategy for flushing out Evangelicals and right-wing Bush supporters to the polls. Dems panicked at the time and didn't fight them hard enough—if at all—leaving statewide activists stranded as they went door to door with a message of equality.

This year the issue hasn't gone away—in fact, California, Arkansas, and Florida all have ballot initiatives that would restrict the rights of gay men and lesbians—but it's certainly deeper underground, despite, or more likely, because of, changes in the right-to-marry that took place this year in California  and Connecticut. But recently, the McCain-Palin ticket has tried to revive the issue, unleashing Sarah Palin to The 700 Club, where she announced support for a Federal Marriage Amendment (which Sen. McCain himself has said he does not support). Currently, polls put support for California's version of the discriminatory measure a shade less than 10 percentage points behind.

Yesterday's San Francisco Chronicle gives a clue as to how the measure might be defeated this time: State Attorney Gen. Jerry Brown reworded the amendment to read "eliminates the right of same-sex couples to marry." With that wording, support for the measure immediately went down. Activists I spoke to in 2004 universally believed that a key to defeating the discriminatory measures were to find ways to convey to voters that this was a violation of their neighbor's rights—as opposed to the Evangelical and Republican positions that claimed gay marriage would undermine the marriages of straight voters. Those voters reached with the message that a ballot measure banning gay marriage was no better than creating a second-class citizenship—in other words, was inherently discriminatory—tended to vote no on the issue.

The big concern with California, and elsewhere, as Goodstein points out in the NYT, is that there tends to be a kind of Bradley Effect on gay issues: Voters are loathe to tell pollsters they plan to vote against their neighbor. But if Prop 8 is defeated, maybe Jerry Brown finally found out how to get that message across more broadly: Write the ballot truly explaining the amendment's intended impact, so voters are forced to face its intended bigotry.