Prop. 8: Which Way Now?

By Kenji Yoshino

Originally published on Advocate.com December 03 2008 12:00 AM ET

On November 4, to the consternation of many pro-gay people, California voters passed Proposition 8, which amended that state’s constitution to maintain that “only marriage between a man and a woman is valid or recognized in California.” Prop. 8 effectively superseded the California supreme court’s May 15 decision that the state constitution guaranteed same-sex couples the right to marry.

Many advocates of same-sex marriage experienced Prop. 8 as an unexpected setback. The proposition represented the first time a constitutional amendment took away the right to marry from same-sex couples rather than withholding a right that had yet to be granted. Many who opposed Prop. 8 thought this unprecedented posture would lead enough moderate voters to take California governor Arnold Schwarzenegger’s position: While he opposed same-sex marriage, he would respect a court decision that legalized it. In the days immediately after the state high court decision, the polls suggested that Prop. 8 would be roundly defeated on Election Day.

Instead, Prop. 8 passed with 52% of the vote. Its passage halted same-sex marriages in the Golden State. It also raised the chilling possibility that Prop. 8 would invalidate the marriages of an estimated 18,000 same-sex couples who legally wed before November 4. I have expressed elsewhere my less-than-sanguine views about the amendment’s retroactive effects. Rather than revisiting that analysis, my focus here will be on what advocates of same-sex marriage should be doing to get rid of Prop. 8 altogether.

Only two options exist -- a judicial challenge to Prop. 8, which has already been filed, and a legislative attempt to overturn the proposition in a future election. These two options are not mutually exclusive. But the legislative strategy is far more promising.

The Judicial StrategySeveral gay rights organizations have already filed a lawsuit, which the California supreme court announced it will hear in March, arguing that the court should strike down Prop. 8. The lawsuit claims that Prop. 8 is invalid not because of substantive flaws but because of procedural ones. Under Article 18 of the California constitution, the constitution can be altered either by an “amendment” or a “revision.” An amendment requires only the approval of a majority of California voters. A revision, by contrast, requires a two-thirds vote by the state legislature and a subsequent majority vote by the people.

Amendments are easier to pass than revisions because amendments make smaller changes to the constitution. According to California precedent, an “amendment implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” A revision, on the other hand, makes “far reaching change[s] in the nature of our basic governmental plan.”

Prop. 8 was styled as an amendment, which is why a bare majority of California voters was sufficient to ensure its passage. The lawsuit maintains that Prop. 8 was a revision, given that it transformed the basic nature of California government. If the court accepts this argument, it will invalidate Prop. 8, as no one disputes that the California legislature never debated, much less approved, the proposition.

The lawsuit argues that Prop. 8 was a revision for several reasons. First, Prop. 8 took away a fundamental right -- the right to marry. It also withdrew that right from a protected group -- under California jurisprudence, gays and lesbians receive the same judicial protection as racial minorities. Finally, Prop. 8 usurped the traditional role of the courts of protecting minorities from the tyranny of majority rule.

Yes on Prop 8 rally x390 (Getty) | Advocate.com

These are strong arguments. Yet Prop. 8 challengers must clear some daunting hurdles. California precedents set a high bar for what constitutes a revision. As law professor Goodwin Liu points out, the courts have declined to designate other significant changes to the California constitution as revisions. These changes include caps on property tax rates, the imposition of legislative term limits, and the reinstatement of the death penalty.

The Prop. 8 lawsuit also will encounter political resistance. When the court legalized same-sex marriage in May by one vote, it was lambasted by conservatives for engaging in judicial activism. For many California voters, a judicial invalidation of Prop. 8 would pile insult on injury.

Unlike their federal counterparts, moreover, the California justices are subject to voter recall. Many California voters -- and justices -- remember the recall of Chief Justice Rose Bird in 1986. Chief Justice Bird insistently interpreted the constitution to protect the right of individuals to be free from capital punishment. This interpretation ran counter to the electorate’s support of the death penalty, and she was recalled. All the justices on the California supreme court will be thinking of Rose Bird as they cast their votes.

To be clear, I am not celebrating the fact that a simple majority of California voters have been able to deprive same-sex couples of the right to marry. To the contrary, I think this question is much better suited to deliberative than direct democracy. My assessment here is merely predictive. For both precedential and political reasons, I think this case is a loser.

The Political StrategyThe only other way to wipe out Prop. 8 is to supersede it with another ballot measure. With the same admirable alacrity that lawyers showed in filing the lawsuit, activists have already begun the campaign to overturn Prop. 8 with another amendment. Equality California, the group that ran the No on 8 campaign, has announced that it may put the same-sex marriage issue on the ballot as early as 2010. This date may be overly optimistic, given that a lot of political and financial capital has already been spent on the No on 8 effort. But there are at least three reasons to be excited about the political strategy.

First, this strategy moves away from lawyer-driven civil rights toward grassroots civil rights. Lawyers have been and always will be an important part of civil rights. But Americans have come to depend too much on the country’s lawyers to protect their civil rights. Gays and lesbians are no exception.

A doctor friend once told me that on his first day of medical school, his dean gave an unforgettable address. The dean said the ailments of patients would or would not resolve themselves but that in the large run of cases, doctors would have no ability to influence the outcome. Part of what students needed to learn in medical school, the dean said, was to surrender their layperson’s reverence for doctors.

I wish every law school dean would give a comparable lecture to every incoming law class and to the nation at large. There are certain civil rights matters only lawyers can handle. But civil rights has always ultimately depended on the population at large, rather than on the tiny sliver of us who are lawyers. So yes, only judges with legal training could have interpreted the California constitution to give us the marriage decision in May. But it was nonlawyer citizens who almost defeated Prop. 8, and I predict it will be citizens -- not judges -- who will ultimately get rid of it.

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.