By David Fleischer
Originally published on Advocate.com June 21 2013 5:00 AM ET
I’m the kind of guy who has several gallons of bottled water in my home here in Los Angeles. Also, two flashlights; I replace the batteries once a year. They’re right next to my first aid kit. I’m not expecting an earthquake tomorrow, but I prepare for the possibility.
So at the moment I’m psychologically preparing for all possible outcomes when the U.S. Supreme Court hands down a decision in the Proposition 8 case, Hollingsworth v. Perry.
Of course, I’m hopeful the high court will issue an opinion, like the two lower courts, that negates Prop. 8 and legalizes same-sex marriage at least in California. If we get that result, all fair-minded people will have a lot to celebrate.
But just as we prepare for earthquakes in California, it’s important that we’re ready for the disaster of an unjust opinion, one that upholds the constitutionality of Prop. 8 and continues to deny same-sex couples the freedom to marry. For while no one knows how the court will rule, it could greatly disappoint us. Four justices have signaled their skepticism of or hostility to marriage equality. During oral arguments, we got a clue that it may have been those four who chose to take the case. Perhaps they were optimistic they could round up a fifth vote that would give them a majority — just as our advocates are optimistic that we might obtain five votes on our behalf.
The swing vote on the court, Justice Kennedy, was particularly difficult to read. He made one encouraging point: that the interests of children with gay or lesbian parents deserve some consideration.
But Kennedy also agreed with a bizarre argument made by one of the hostile justices. Both he and Justice Alito noted that our society has a great deal of experience —“thousands of years,” as Alito put it — with opposite-sex marriage, and only a few years of experience allowing same-sex marriage. “Newer than cell phones or the Internet” is how Alito summed it up, seemingly viewing committed same-sex relationships as a new invention. Kennedy expressed worry about “uncharted waters.”
The bottom line: We just don’t know how Kennedy will vote. While we hope the court will do the right thing, and we’re grateful for the terrific legal representation that has gotten us to this point, we should prepare for all the possibilities.
That way, when the court issues its opinion this month, we don’t have to be furious and surprised; we can instead be furious and ready. If we have to undo Prop. 8 at the ballot box, the earliest date would be November 2014. While a recent poll shows 58% of Californians support our freedom to marry, compared to 36% who are against, we can’t take anything for granted. In 2008, during the campaign on Prop. 8, most polls vastly overstated our support and got the result woefully wrong. Overly sunny polls can encourage complacency, yet nothing would be more dangerous.
Instead, let’s express our support of marriage equality by getting ready either to celebrate a good decision, even a narrow technical victory, or to join any campaign that an adverse decision might require. There are many ways to get involved right now. A dozen groups are training marriage equality supporters to have “breakthrough conversations” with family and friends who aren’t yet firmly on our side. In addition, at the Los Angeles Gay and Lesbian Center, we go door-to-door talking in the very neighborhoods where we lost on Prop. 8. We’ve learned that many who voted against us are open to reconsidering.
It would be nice if I, a relatively new transplant to L.A., never have to crack open my bottled water to make it through a bad earthquake.
But I prefer to be prepared. If you feel the same way, let’s get as ready as we can to cope with the Big One — and, this month, the Supreme One.
DAVID FLEISCHER directs the L.A. Gay and Lesbian Center’s Leadership LAB, which includes our Vote for Equality team. For the last eight years that team has been educating voters about marriage equality through neighborhood canvassing.