2009-06-09

Equality California versus Proposition 8

Following the California State Supreme Court's decision two weeks ago to let Proposition 8 stand, Equality California is taking the issue of marriage equality for lesbian and gay couples back to the ballot box, and reinstate the right of same-sex couples to marry.

Win Marriage Back: Make it Real! is a coordinated, grassroots and media effort to build support for the freedom to marry at the local level and over the airwaves. Together, we will introduce ourselves to the people of California, winning their hearts and minds and ensuring that we win marriage back once and for all.

EQCA's goal is to reach out to voters in areas like Orange County, San Diego, Sacramento, and the Inland Empire who may be undecided about the issue, or who may be willing to reconsider their past support of Prop 8. You can donate to this campaign here. This follows a recent campaign in Central California called Meet in the Middle.

Remarks. I had the opportunity to do some canvassing with Equality California here in downtown San Francisco. It was a challenging environment because most people were in a hurry and couldn't stop, but there was a strong sense of support from the people we talked to. Of course, this is San Francisco!

A key aspect of this campaign is that it will aim to get marriage equality passed through the legislative process, as opposed to a court decision. One of the few negative comments I got was from a man who said, "The people have spoken!" And I wonder if some of the original support for Prop 8 might have come from people who weren't necessarily hard-core opponents of gay marriage, but rather small-government conservatives who saw the original State Supreme Court decision as a case of unelected courts overstepping their authority.

The Volokh Conspiracy has a post by Ilya Somin (dated May 25, 2009) addressing the question of whether judicial decisions supporting same-sex marriage are a net liability for marriage equality.

Legal scholars such as Jeffrey Rosen and Gerald Rosenberg have argued that judicial decisions striking down state bans on gay marriage have ultimately set back the cause of gay equality by stimulating an anti-gay marriage political backlash. Back in November, I wrote a post criticizing this view, noting that judicial decisions have led to much faster adoption of gay marriage than would have occurred otherwise. Since November, three more states - Iowa, Maine, and Vermont, have legalized gay marriage and New Hampshire is likely to do so soon, despite some delays. Three of those four states (all but Iowa) have adopted gay marriage through the legislative process (or almost done so, in the case of NH), which suggests that the power of the anti-gay marriage backlash is waning.

These developments provide additional support for my argument that judicial review has been a net plus for the gay marriage movement. It is unlikely that either these four states or the two that adopted gay marriage earlier would have done so as quickly were it not for the momentum generated by the Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state. Until that point, gay marriage seemed a very distant prospect in virtually every state, even the more liberal ones. ...

Go to the post for links, and some great discussion in comments. It's important to note that some gay activists prefer the legislative approach. Here's Jonathan Rauch writing back in 1999:

I should say that I firmly favor gay marriage, both on humanitarian grounds and because I think it is good social policy. If gay people exist — that is, if we are not just neurotic heterosexuals who need to get our act together — then surely we ought to be encouraged to marry and settle down. It has never been clear to me why discouraging stable gay relationships in favor of sex in parks and porn shops is good for the American family, or anyone else.

Nonetheless, gay marriage is a deeply polarizing issue, to put the case mildly. To impose it judicially on a predominantly hostile country would beg for a backlash — against gays, against the courts, against government broadly.

And Rauch's analysis of "Not Whether, but How" from this past winter:

Same-sex marriage can, I think, shed light on how to understand the tensions in today’s conservatism. The way the country is dealing with same-sex marriage teaches something about the sense in which America is more truly and coherently conservative than are the current leaders of its conservative movement.

The coming debate over the fate of Proposition 8 will provide Californians many opportunities to give this issue the thoughtful discussion it deserves. I am confident that soon - very soon - lesbian and gay Californians will enjoy full equality of marriage rights, won through the assent of the people of California.