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Tuesday, November 04, 2008

Process and Substance Arguments About Prop. 8

Back at the end of my June blogging stint I suggested, based on a conversation I had with a figure in the No-on-Proposition 8 forces,  that the forces pushing Prop. 8 (the anti-same-sex marriage rights initiative) might focus more on process arguments (i.e., the judicial-hijacking-of-the-people's-will) than on the substantive merits of the issue.  It hasn't turned out that way, at least based on what I've heard and seen (here is an exception, though given the length of the ad I suspect it's not been widely televised).  There has been some judge-bashing (like in this TV ad, which has gotten a fair amount of airtime, and this op-ed) but even these statements just start with the judicial angle and then move on to the substantive claims against according marriage rights to same-sex couples. 

In retrospect this shouldn't have been too surprising: an issue that elicits this kind of gut reaction (both pro and con) is probably not susceptible to process arguments, even the one that probably gets the most traction -- that "activist" judges are thwarting the people's will.

Still, stitching together (and extrapolating from) strands of the pro-Prop. 8 arguments I've heard reveals the outline of a process argument.  It starts with the statement that Prop. 8 will not take away any material benefits same-sex couples currently enjoy.  It then attempts to refute the argument that Prop. 8 takes away rights by arguing that the right never existed, but was instead invented by the state supreme court majority.  Thus, Californians should not feel guilted by the don't eliminate rights argument, which essentially holds Californians hostage to whatever rights a bare majority of the state supreme court may dream up.  The argument concludes by calling for Californians to discipline the courts by reimposing, now as a matter of state constitutional law, the one-man-one-woman definition of marriage that the people enacted as a statute (Proposition 22) in 2000.

Of course this process argument has been nowhere near front and center of the pro-Prop. 8 argument, which has instead focused on the "protecting children" and religious freedom angles.  And substance is where the argument ought to be, anyway.  Ironically enough, the sequence of events in which the court's decision generated the initiative means that the people are in fact getting the final say on what the state constitution means.  That's not to say the process is perfect: amending a constitution ought to take more than one vote of a simple majority.  Nor is it to say that this kind of issue ought, in some deeper way, to be put up for a vote.  But, for better or worse, the sequence of events in California has cleared away the process arguments and squarely presented the substance of the same-sex marriage rights issue.

Posted by Bill Araiza on November 4, 2008 at 05:39 PM | Permalink

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Comments

I generally agree with Rob's point. Indeed, I remember being surprised, mainly for the reasons you give, when the activist/lawyer acquaintance of mine suggested that Prop 8's oponents would take this tack. But I will note that some ads did at least reference the decision, though maybe that reference was just code for, "as a substantive matter it's once again us versus the liberal activist judges." Interestingly, the Gingrich ad I linked to was nearly purely process-based (i.e., anti-"judicial tyranny") but it too ended with a request to "restore traditional marriage," thus ultimately coming around to making a substantive argument. So I suspect that ultimately you're right.

Posted by: Bill Araiza | Nov 8, 2008 1:06:18 PM

I tend to think that process arguments do resonate with citizens; they care about substance, yes, but they also care that government follows proper procedures. Indeed, I just published an empirical study (with Cindy Kam) in JELS showing that citizens care about federalism (another process issue), and at least some of them care about it enough such that they would be willing to sacrifice their policy preferences (i.e., their substantive views) in order to protect it. (Our study asked survey participants whether they would support or oppose a congressional ban on Physician Assisted Suicide, but I think the analysis could apply to other issues, like same sex marriage.) I published another piece in OSU last year that develops the argument and briefly discusses the broader literature on “process” considerations. The impact of process depends, of course, on a number of considerations – how strongly citizens value process versus how strongly they value substance, etc.

So at first, I was somewhat surprised that proponents of Prop 8 hadn’t focused more on process arguments (elites are savvy, and they frame arguments in ways they know will resonate with voters). But then I thought – the process argument just doesn’t work here, at least for proponents. Here’s why: California voters weren’t really being asked to participate in an illegitimate process (since California law says the people can change the state’s Constitution via referenda), nor were they even being asked directly to “undo” some other “illegitimate” process (i.e., they were being asked what they thought of same-sex marriage, and not whether they thought the CA court’s decision was legitimate – the referenda could’ve been held, as it was elsewhere, even without a court decision on the issue). So, for example, I can see a process argument working in the election campaign of one of the Cal. Justices (i.e., “even if you agree with the decision, justice X overstepped her bounds”), but not on referenda itself. Indeed, I tried to think about how a proponent of Prop 8 would have phrased the argument, but I kept coming up with blanks: “The Cal court overstepped its bounds in recognizing same sex marriage. Hence, vote ____ on Prop 8.” It's almost impossible to divorce substance from procedure here; a “yes” vote is a very crude way of rebuffing the Court.

By contrast, the recall of Gray Davis allowed citizens to vote on process (do you think GD should be recalled?) as distinct from substance (if GD is recalled, who should be our next governor?). Similarly, in the federalism context, if I asked a citizen “Should Congress ban same-sex marriage”, the process argument would make more sense – if she thinks marriage is a state issue, even an opponent of same-sex marriage might oppose the ban – because the citizen is being asked to directly comment on the action that allegedly violates the process. (If Congress were considering a constitutional amendment, however, the argument would be muddied, like it was with Prop 8.)

As you suggest, the argument could have been used as a shield (i.e., to negate a process argument made by opponents -- don’t take away rights), but I just don’t think it works as a sword for proponents.

Posted by: Rob Mikos | Nov 6, 2008 5:11:46 PM

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