Nothing to see here but more Prop 8 hand-wringing

[muckefuck]

I'm a lot more bummed by the success of Proposition 8 than I expected to me. Even though I knew that the last ballot measure passed easily, that polls showed a clear win, that any time we allow a popular vote on queer rights we get shafted--even with all these things in mind, I still blithely expected it to fail.

Now that the expensive legislative battle is over, another expensive legal battle begins. It pains me to think of all those tens of millions down the drain simply because a scant majority of Californians can't accept that they live in a secular democracy, that civil marriage is not a sacrament and follows different rules. That's what makes this first and foremost a defeat for liberal humanism, and only secondarily for gay rights.

I'm trying to set my lights by cpratt, who's been very upbeat in his comments today despite being one of the thousands of individuals who's just seen his marriage go *poof*. (But, then, I guess it's a little easier the second time around; think you'll get your license fee refunded this time?) We've known for years now that getting same-sex marriage is mostly a waiting game, as resistance drops with every generation. Once today's over-65s are dead and gone, the yeas will have it--but that's awfully cold comfort to anyone who would like some additional legal protections in the meantime.

There are other illiberal measures that stick in my crawl from this election--particularly Missouri's Official English law and Arkansas' hateful and unjustified barring of gay couples from adoption and foster care--but I had already resigned myself to those. For some reason, I keep having higher expectations for California, despite all evidence to the contrary.

Comments

[qwrrty.livejournal.com]

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.

[lhn.livejournal.com]

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.

[qwrrty.livejournal.com]

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.

[lhn.livejournal.com]

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...

[his-regard.livejournal.com]

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."

[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.

[lhn.livejournal.com]

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.

[richardthinks.livejournal.com]

Islamist customs

violent moral policing?

[his-regard.livejournal.com]

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.

[muckefuck.livejournal.com]

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.

[his-regard.livejournal.com]

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"?

[lhn.livejournal.com]

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.

[muckefuck.livejournal.com]

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.

[his-regard.livejournal.com]

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?

[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.