The Death of Imagination

I'm deeply troubled by the Prop 8 results. Not merely because of the terrible impact on California's citizens, but how it may re-energize attempts to stamp out same-sex marriage here and in Connecticut. Passing Prop 8 in California of all places must be enormously heady for them. I would not be surprised at all if I learned that they were inspired to begin backing new efforts to amend Massachusetts' constitution.

Thank god our constitution can't be amended by snapping your fingers like it can in California, but that would be a long, expensive and bloody fight... again.

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ceirdwenfc.livejournal.com

I thought I heard on the news this morning that people who were already married weren't affected by the passage. Is that not true?

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It sounds like the legal opinion is that Prop 8 cannot invalidate existing marriages because it would violate the ex post facto clause of the U.S. constitution. See e.g. http://en.wikipedia.org/wiki/California_Proposition_8_(2008)#Proposed_amendment. Nonetheless I expect to see lots of legal snafu around existing same-sex marriages.

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The mention of the ex post facto clause is long gone from the Wikipedia article (which is undergoing a lot of revisions today for some reason or other). A version which may or may not be the one you originally linked to is here, though since the quote is sourced to The Advocate, I don't know how representative it is of constitutional jurisprudence in California's circuit. Generally, the ex post facto clause is applied to criminal rather than civil issues, which makes me a little skeptical, but it's not an issue I've researched.

To put it to a court test would also likely require finding a substantive legal issue in CA where marriage would allow something that civil union wouldn't. Since I believe that civil union in CA gives couples all rights under state law that marriage does (and CA same-sex marriage never gave same-sex couples any marriage rights under federal law), that may be difficult.

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Bah. I should have known better. That is in fact the version I was looking at, thanks.

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wiped.livejournal.com

living in california, i had higher expectations of my state as well. i can't believe even LA county voted in favor of 8. supremely disappointing.

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lifeandstuff.livejournal.com

I think some folks I talk to had been hoping that the fact that a state had actually seen this in operation and seen that it made no functional difference in the lives of non-gay citizens (as opposed to bringing about the end of the world or something, I suppose) would make them more accepting in it.

Actually, I suppose it might have, at the margins, but in legal terms passing by 80% and passing by 51% are the same thing. :(

Edited Date: 2008-11-05 08:55 pm (UTC)

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gopower.livejournal.com

a scant majority of Californians can't accept that they live in a secular democracy

I think you have this completely backward. It is the pro-gay marriage side that refuses to believe in democracy. I suspect that there are plenty of people who were offended that some judges chose to override the democratically-expressed will of the people based on heretofore unknown penumbras in the Constitution to impose gay marriage.

That, in fact, was a major explicit thrust in the pro-8 campaign, and it was implicit in the "scare tactics" arguments like "judges will order all churches to perform gay marriage." Based on the judicial track record, why wouldn't a reasonable person believe that could very well happen?

If the pro-marriage side had had enough faith in the people to put up a straight-up (so to speak) "yes on gay marriage" amendment, it quite probably could have picked up the few extra percent needed to win, at least in California.

They didn't because politicians like Barack Obama want to have it both ways, mollifying gay marriage opponents while winking at supporters.

*And to preempt the "we shouldn't have to vote on rights" argument, marriage is not and never was a right. Civil marriage is a privilege granted by the state which regulates how it may and may not be used.

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pklexton.livejournal.com

Actually, one of the functions of a constitution is to protect the civil rights of minorities from majority oppression. Indeed that is the whole idea behind the bill of rights. Remember your high school American history? The idea that your civil rights can be modified by a 50.1% majority should scare people.

Actually, marriage has been found to be a fundamental right by the US Supreme Court. Just not for some of us.

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The Bill of Rights was, however, a set of actual constitutional amendments passed by the states, not brought into existence by judicial interpretation. Ditto the 13th, 14th, and 15th Amendments. Constitutional protections still have to be enacted by established democratic processes, or they risk being undone by them. The modern fashion for depending on judges instead of going through the hard work of getting an amendment passed only works as long as the other side can't get an amendment going the other way.

(And as long as you've got the judges you want-- if not, then your "judicial protections" may look more like Plessy v. Ferguson or Bowers v. Hardwick. Government by relatively unaccountable judges is a double-edged sword.)

That said, I'm not sure what the point is of California's having a constitution that can be amended by a 51% popular vote. But blame that on the old Progressive movement and their "Initiative, Referendum, and Recall" battle cry and the institutionalization of government by popular whim.

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pklexton.livejournal.com

I agree with the statement about the unreliability of judicial protections by judge-made law. Sure, it can abused, and the system loses legitimacy. Judge-made law, regarding consitutional rights or otherwise, however, has been part of our system since almost the beginning. Conservatives sometimes forget that it doesn't all go one way. Bush v. Gore.

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Or Marbury v. Madison. Or the entire English common law tradition. But there are limits-- not least those imposed by the separation of powers that allows other lawmaking institutions to reverse those decisions where they're deemed to have gone further than their interpretive powers properly allowed. (Traditionally the legislature, but CA's crazy system is, by now, hallowed by nearly a century of history.)

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There is no way to put a kind face on this matter.

Voting against marriage is wrong. It is hateful. These measures have passed largely because naive people have been hoodwinked into thinking that terrible things will happen if same-sex marriage is allowed.

To try to justify the passage of Proposition 8 as a procedural matter is cynical and contemptible. The issue at hand is not and never has been "judicial activism." The concept itself is absurd. Every decision made by a judge or court is, ipso facto, a decision that has been taken away from the people. How odd that the people don't seem to mind this until a judge decides something that offends their sensibilities. The idea that there is a substantial bloc of voters who personally supported same-sex marriage, but chose to defeat it strictly because they were upset at the way in which it was enacted is nothing short of bizarre.

This is not a narrow argument about the separation of powers. It is a culture war. You will have to remember that when you speak in its defense.

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So what's separation of powers for, then, if it doesn't matter which branch of the government does what?

But never mind the crazy idea that a judge may occasionally have to decide a case in a manner that he personally disagrees with in principle, because it's not realistically imaginable that the framers of the law he's interpreting could possibly have meant it to be interpreted otherwise. Up with living documents where "shall not be infringed" is open to interpretation while unarticulated penumbras contain inalienable rights. Even so, radical revision of the law by judicial fiat is pragmatically a bad way of going about it, because of exactly the results that you see: the electorate, where it has the chance, will reverse it.

It can still be made to work where the electorate isn't given such a chance. That's mostly on the federal level, where amendments are very hard. But it can also work on the state level (e.g., in MA, where the initiative was successfully kept off the ballot). But California, with its windsock "constitution" and initiatives by the handful, was in some ways the worst place to try to go the judicial route. (If Brown v. Board had been decided by a state supreme court in a state structured like CA, rather than by the US Supreme Court, it would be a footnote in history noted mostly for its overwhelming reversal at the next election. Except with more poll violence if supporters had dared to openly proclaim their stance.)

Though if Prop 8 had failed, it would have been a watershed. However after-the-fact, it would have given democratic ratification to the decision, and made it impossible to frame subsequently as a judicial end-run around the will of the people. I'm sorry things didn't work out that way.

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I don't mean that the separation of powers doesn't matter. I'm saying that it's not the complaint that's really driving this issue, and it's disingenuous at best to claim that it is. The people who voted down Prop 8 did so because they don't like gay marriage. Period. If the issue had been raised by some other mechanism, the opponents would have found a different reason to object to it.

To say that this all could have been avoided if same-sex marriage proponents had only chosen a more "democratic" approach is patronizing and sophomoric. No path to same-sex marriage is sufficiently by-the-book that opponents will decline to challenge the result.

I believe that for you the separation of powers is the real outrage here. I have no doubt that some of the California electorate do feel the same way. But they are a tiny, tiny minority here. Prop 8 was not a referendum on the proper role of the courts. It was a referendum on queers. Let's call a spade a spade.

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To say that this all could have been avoided if same-sex marriage proponents had only chosen a more "democratic" approach is patronizing and sophomoric. No path to same-sex marriage is sufficiently by-the-book that opponents will decline to challenge the result.

However, if it wins by democratic means (whether legislative or direct initiative), it's less likely that they'll be able to challenge the result. I don't expect many people to care as much as I do about process, which is why I've been concentrating on the pragmatic side of things: if proponents had succeeded via an approach that required convincing voters that they were right, then this sort of reversal wouldn't have been politically possible. Attempting to end-run the voters in a state where the voters don't even have to bother going through their legislators to undo it, in addition to being in my irrelevant opinion a misapplication of judicial power, is very likely to be a waste of time. One redeemable only by doing, belatedly, what needed to be done in the first place in terms of persuading the electorate.

Which, to be fair, they almost succeeded in doing. Such a moral victory may be cold comfort given the real effects that losing will have. But still, it's a sign that there's a decent chance that the real fight can be won in the long run. And a lot of same-sex marriage supporters have lately learned just how little barrier there is to getting the CA constitution amended...

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These measures have passed largely because naive people have been hoodwinked into thinking that terrible things will happen if same-sex marriage is allowed.

Or possibly, because well-meaning but uncertain people keep being told that that they are hateful and naive.

"Think as I think," said a man,/ "Or you are abominably wicked; You are a toad." /
And after I had thought of it, / I said, "I will, then, be a toad."

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richardthinks.livejournal.com

well-meaning but uncertain people

Possibly, and I think your broader point has some merit. I wonder how many well-meaning but uncertain people there are in America who oppose same-sex marriage, though? Who think that obviously, same-sex marriage should be allowed in principle, but don't necessarily think that principle should affect state practice, or who are concerned first and foremost for the rights of their gay compatriots, but are just a bit worried about not denying them those rights, in case it goes wrong somehow? I'm picturing a "give them an inch and they'll take a mile" kind of attitude, although I'm not quite sure what a mile would be, in this case.

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I'm picturing a "give them an inch and they'll take a mile" kind of attitude, although I'm not quite sure what a mile would be, in this case.

Polygamy. It's as certain to come up in the comments of a conservative blog on gay marriage as "why not get the state out of the marriage business altogether?" is on a pro-gay-marriage thread. Depending on the thrust, it may tie into issues of women's rights, child marriage, importation of Islamist customs, concerns about the FLDS and other Mormon offshoots, or (rarely) polyamory, but polygamy will always, always be mentioned as the next thing that will happen if same-sex marriage is allowed.

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richardthinks.livejournal.com

Islamist customs

violent moral policing?

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I'm picturing a "give them an inch and they'll take a mile" kind of attitude, although I'm not quite sure what a mile would be, in this case.

Losing the ability to freely practice religion, at a minimum -- and arguably, not an invalid concern.

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Oh, be reasonable! If having to deal with a few noisy protesters for a while equates to "losing the ability to freely practice religion", then members of the Roman Catholic Church haven't had it for over 20 years now.

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It's the premise of the protest that bothers me. If this was a counter-protest to a "yes on Prop 8" celebration, I wouldn't have a problem. But it's not. It is specifically a protest against Mormons for having dared to legally use their free speech rights. That's about as anti-liberal as it gets, It puts these gay rights advocates in about the same position as animal rights whackjobs like SHAC.

Put it this way: there is already the promise of more litigation in the wake of this amendment. Do you think it would count as a chilling effect on the free speech of the "no" advocates if, after a court filing, a few thousand LDS members converged on a well-known gay bar for days, jumping on cars and directly confronting anyone who tries to pass through their ranks? Or would you pass that off as "a few noisy protesters"?

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One thing this election has really highlighted to me in multiple contexts is that open anti-Mormon sentiments are politically acceptable in a way that antisemitism and anti-Catholicism currently aren't. It seems to be about where the latter was around the mid-20th century, or maybe earlier. (Mutterings about Romney may have, if anything, treaded closer to Al Smith than JFK.) Not just legitimately treating them as political foes, but questioning their ability to act as members of a democratic society rather than as the brainwashed minions of the Pope^Wthe Quorum of the Twelve Apostles. I've likewise seen suggestions that their uncanny ability to organize effort to have influence on an issue important to they beyond their numbers (without it even being suggested that they're going outside the law) somehow constitutes cheating.

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I still don't see how this relates to

richardthinks original question about "well-meaning but uncertain people" have to fear from allowing same-sex marriage. The LDS wasn't even really on the radar for queer activists until they decided to throw their support wholeheartedly behind Prop 8.

And in answer to your question, no, I don't think a couple of noisy rallies (you seem to have conflated separate events in different parts of LA in your suggestion that they've continued "for days" outside a single local and multiplied one person jumping on one car into a movement) will add up to much of a chilling effect. Right now, gays in California feel very personally attacked by the legislation and are venting that; it won't last.

Like

lhn, however, I am rather dismayed to see the LDS taking so much of the heat for what was, after all, a popular decision. At first I thought perhaps I was being oversensitive to the these sentiments because of our history of persecution against the LDS, but when a Semite tells you that anti-Mormonism is currently worse than anti-Semitism, it's sobering.

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I still don't see how this relates to [info]richardthinks original question about "well-meaning but uncertain people" have to fear from allowing same-sex marriage.

Fair enough. Let me try answering it this way: polls suggest that the nation's opinion on same-sex marriage rights breaks down into more or less equal thirds -- the people who love the idea, the people who hate the idea, and the people who don't have a problem with gay couples getting the social benefits desired so long as it's not called "marriage." I don't know what all their reasons might be for wanting the distinction. I highly doubt, however, that the people in the last group consider themselves naive or hateful, if for no other reason than they do, in fact, support the practice of gay rights.

Unfortunately, that's not the attitude taken by same-sex marriage activists, who tend to break out disparaging talk about "separate, but equal" -- which immediately links that well-intentioned middle third to vile racism we've worked 50 years to eradicate, and promptly loses their support. Even if we completely gloss over the details what "equal" means in this comparison, as a practical matter the only thing that's happened is that same-sex marriage advocates have maligned the people most likely to be swayed by their arguments. So far, this approach has failed every time in the 60% of states it's been tried (counting the current state of the do-over in Arizona between '06 and '08). If you go in knowing that there's not enough support to win an "all or nothing" fight but press for it anyway, should it really be a surprise when you get nothing?

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richardthinks.livejournal.com

I have to confess, I know nothing about the Mormons, but I'm impressed that they seem to stand at the centre of fearmongering on both sides of this issue. What a fool I was, thinking it was all about teh gay.

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I wouldn't rely on future generations to somehow automatically be more accepting of homosexuals than their parents were. Especially younger people largely tend towards homophobia.

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What are basing that impression on? I'm basing my views on solid poll data from agencies like the Pew Research Center and the Gallup Organisation. For instance, the tables in this summary (http://www.gallup.com/poll/27694/Tolerance-Gay-Rights-HighWater-Mark.aspx) clearly show higher rates of tolerance among 18-34 year olds (75%) than among the 55+ set (45%) with the 35-54 year-olds falling in-between (58%). Moreover, longitudinal sampling shows that these figures tend to remain consistent among cohorts; that is, the percentages for 35-54 year-olds today are similar to those for 25-44 year-olds ten years ago. So it's not so much that people are changing their views as that most young people don't form the same prejudices as their elders. That's why it's only a matter of time before full acceptance.

Perhaps your impression is skewed by the fact that younger people are more likely to engage in violent acts of homophobia? That's due to the fact that younger people are much more likely to indulge in violent acts, so the diminishing percentage who are homophobic are more likely to do something about it than the much larger percentage of older people.

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Oh, I never doubted current generations are more tolerant than past ones (Although the situation apparently looks different in Germany).

All I'm saying is that you can't just take that tendency for granted and wait a couple of years. The percentage won't magically improve on its own, it's the result of education. The young folks don't really need to form the same prejudices as their elders - they might just start inventing new ones. ;)

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"Every generation, western civilization is invaded by barbarians. We call them 'children.' "

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There's nothing "magical" about it: Tolerance breeds openness, which in turn breeds more tolerance. There's nothing innate about prejudices against homosexuality; they are learned. If the previous generation doesn't teach them, there's no particular reason to believe that the next will come up with them on their own.

(Thanks for the press release, but I do wish there were access to details of the study, such as the methodology. Without those, there's no way to judge the trustworthiness of the reported data.)

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I disagree: Openness doesn't breed tolerance.

The term "tolerance" conveys that there's something objectionable that you merely endure for the sake of peace. If I find something like homosexuality objectionable, it's easier to tolerate when few gay people are around. But if more of them are visible, I'm more inclined to regard them as a menace.
The only way that openness can lead to more tolerance is through peer pressure, but that's fake tolerance that can backlash any moment.

I think we're not talking about tolerance here, though. A lack of prejudices rather leads towards indifference - now that's something to strive for! If only more people were indifferent towards homosexuals...

Prejudices in general are not always merely learned from previous generations. There has to be a point where they came into existence, right? Future generations are not exempt from projecting their own failures onto a convenient scapegoat. I can imagine hundreds of scenarios that could produce new prejudices.

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If you object to the word "tolerance", substitute "acceptance".

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