The New Republic

The sucessful gay marriage challenge in the California Supreme Court actually dates back to the 2004 decision by Gavin Newsom, the Mayor of San Francisco, to issue marriage licenses. Thousands of couple got married (illegally) then and thousands more were married legally this year as a consequence of the law suit stemming from the earlier marriages.

I get tired of people like Megan McCardle criticizing the tactics used to legalize gay marriage which would remain a theoretical concept until hell freezes if activists followed her advice. The actuality of gay marriage has thrust the issue into the public eye in a way that millions of flyers could not have. And the actuality is that the world doesn't end when gay marriage is legalized.

- ndmackenzie

November 5, 2008 at 8:22pm

I find it difficult to understand how one can oppose "on principle" the move to have equal rights for gays recognized by our legal institutions.  I am a well-trained lawyer with a sophisticated understanding of the lagal issues involved, an understanding that tells me that this is not a question of usurpation, in California or anywhere else, nor is it a question of recognizing an unenumerated right having a tenuous connection to the letter or spirit of the constitutional document.  Although I don't agree with them, there are, of course, principled arguments against Roe v. Wade, for example.  This, by contrast, is a relatively straightforward matter of equality before the law -- one of those few things that we are clearly not permitted to alter or diminish by popular vote.

As for strategy, I hear the point regarding California, but, to my way of thinking, having any high courts anywhere recognize the right of a gay person to marry like anyone else is important.  It's important symbollically, even if it is overturned by a popular initiative.  It says that our principles and our ideals as a state and a country and a people command that gays may not be officially disfavored for being gay.  Nobody can really undo that statement once it's made, even if they can temporarily undo its practical implications.  It stands as a sober, serious, and official pronouncement in favor of equal rights -- one that voters are forced to stand up and approve or, sadly in this case, reject.  It stands as a moral call to arms.

The path of progress on an issue like this is not clear.  Even today, people argue about the NAACP's strategy to pursue equal rights for blacks in the courts well before they were recognized politically.  But I wouldn't tremble at the prospect of a setback.  It's just as easy to put a pro-gay-rights initiative on a ballot as it is to put an anti-gay-rights initiative on a ballot.  I have little doubt that the day will come when the hateful and hurtful constitutional amendments that some voters have approved will be undone -- perhaps by the federal courts, perhaps by the people.  In the meantime, gays can marry in Massachussetts, and they can see genuine progress in their fight to have their equal dignity recognized.

- jhildner

November 5, 2008 at 9:00pm

The other thing to keep in mind about the passage of Prop. 8 is that the opposition ran a terrible campaign. They failed to set the terms of the debate as the revocation of the rights of gays to marry. They ceded that ground to the proponents who were only too happy to define Prop. 8 as a means to protect the rights of parents and the education of their children. Opponents were then forced to fight on turf more favorable to the proponents of Prop. 8.  Neither side made much mention of gays. Again, this played into the hands of the proponents, as voters didn't feel compelled to protect the rights of a group that could not be named. Instead they protected the rights of a group they knew and felt compelled to defend.

Tactically, the No on 8 campaign was caught napping. Prop. 8 was trailing in the polls by double-digit margins through the summer. Obama was expected to carry the state by 20 points or more. Opponents felt secure and failed to mobilize the money and the grassroots that would be needed to overcome the organization of the Yes on 8 forces. By the time the No on 8 campaign woke up to all the money pouring in from out-of-state religious groups, it was too late. The momentum had changed and was charging towards passage of Prop. 8.

A huge opportunity was squandered. Defending rights that already exist would be much easier than asking for voters to grant new rights, which is why the legislative avenue to gay marriage has not worked. Prop. 8 can be overturned with a new state constitutional amendment, but that will be much harder and take much longer to realize.

- keithw

November 5, 2008 at 9:17pm

Court decisions desegregate schools would have been judicial pipe dreams if Eisenhower and Kennedy hadn't been willing to use the power of the federal government to force states to obey those decisions. It took Congress passing the Voting Rights Act to give all eligible citizens the vote, and that wouldn't have happened without a change of heart from a majority of whites, and it was just enabling legislation for rights already conferred (theoretically) in the Reconstruction amendments to the Constitution.

Even in California, a majority apparently isn't ready to accept gay marriage yet. Which raises the question whether the California Supreme Court helped or hurt the prospects for legalizing gay marriage.

- hrlngrv

November 5, 2008 at 9:40pm

Once again, every anti-gay initiative on state ballots this year passed.  Amidst all of the celebration over the election of the first black President and how far we've come as a country, this serves as a reminder that although we've come a long way, we still have a long way to go.

Legal question: do all of these amendments banning gay marriage have any bearing on civil unions?

- AlanSP

November 5, 2008 at 9:42pm