Prop. 8: Which Way Now?

Will the courts or the ballot box be the best way to overturn California’s anti–gay marriage constitutional amendment? Legal scholar Kenji Yoshino examines both approaches.

BY Kenji Yoshino

December 03 2008 1:00 AM ET

Utah Prop. 8 protest x390 11/7 (Getty) | Advocate.com

The extent to which the American citizenry has mobilized around this issue has been thrilling. As of this writing, over 295,000 individuals have signed a petition to repeal Prop. 8 at www.couragecampaign.org/Repeal. I have no affiliation with the sponsoring organization other than having signed the online petition, so I can encourage you in good conscience to set aside this magazine and sign up before you continue reading.

Second and relatedly, the repeal strategy forces us all to guard against complacency. President-elect Barack Obama had a much happier November 4 than opponents of Prop. 8 in part because he kept urging his supporters not to take too much comfort in his sturdy lead in the polls. He exhorted everyone to remember the New Hampshire primary, where the polls had grossly missed the mark. Sounding that cautionary note helped him keep his campaign focused on its goal.

The No on 8 campaign was mired in complacency. Again, the polls appeared to justify optimism, at least in the days after the supreme court decision. A California Field Poll in May showed 54% of registered California voters opposed to Prop. 8. Going forward, then, we should remember Prop. 8 in the same way that Obama wanted us to remember New Hampshire.

To continue the analogy to the Obama campaign, we should also wonder if we are overestimating the loyalty of our ostensible supporters. The Obama campaign warned against the infamous “Bradley effect,” in which voters tell pollsters they are voting for an African-American candidate but then express their racism in the voting booth. In this election this effect may have been more powerful in the sexual orientation context than in the racial one. Early analysis suggests that many opposed Prop. 8 in public and then supported it in the closet of the voting booth.

Speaking of closets, the final benefit of the grassroots outrage over Prop. 8 is that it has encouraged gay people to come out as couples rather than as individuals. It has long been established that the greatest predictor of whether people are pro-gay is whether they knowingly know someone gay. It seems logical to hypothesize that people would also be more in favor of same-sex marriage if they came into contact with same-sex couples. Yet for too long, media representations of gays have focused on individuals -- like the eternally single Will or the perennially promiscuous Jack on Will & Grace -- rather than on long-term committed couples.

The social theorist Michel Foucault once said homophobes were much less threatened by gays departing for a one-night stand than gays in a committed relationship. “It is not the departure for pleasure that is intolerable,” he wrote, “it is waking up happy.”

The last generation of gay rights was about the abolition of sodomy statutes. It was about the “departure for pleasure,” in which we retreated to our bedrooms before we expressed our sexual orientation. This generation of gay rights is about marriage. It is about showing the world we “wake up happy” and live and work and love as couples in the public sphere.

Both the May court decision and the passage of Proposition 8 will undoubtedly drive more couples out of the closet. California has now been confronted with 18,000 married same-sex couples, who will do more for marriage equality than 36,000 gay individuals ever could. The passage of Prop. 8 should galvanize couples across the nation to express their outrage as couples. If that is the effect of these anti-marriage measures, marriage equality will not be far away.

Tags: Politics

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