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Friday, May 15, 2009

Prop. 8 Redux?

Over the last year the same-sex marriage movement has had as many ups and downs as ... well, a marriage.  As I've blogged about in the past, the passage of Proposition 8 in California last November was a bitter defeat for pro-marriage rights forces, especially those, like me, with a personal stake in the outcome.  Since then, though, decisions in Iowa, Vermont, Maine and, apparently, New Hampshire have provided a string of wins for the pro-marriage rights forces.  By all accounts New York remains a close call.

So is it time to revisit the issue in California?  Marriage rights forces appear to be gearing up  for another go in California in 2010, assuming that the state supreme court upholds Proposition 8's constitutionality, as most legal commentators expect.  This time the tool is not a lawsuit but a referendum to overturn Prop 8.  There apparently is no restriction on the frequency with which a matter can be brought to voters via a referendum.  (Of course the last referendum opposed, rather than favored, marriage rights for same sex couples.)  As a former Californian this doesn't surprise me: a number of years ago I remember conflicting campaign finance referenda appearing on the very same ballot.  Compared to that, referenda on the same topic appearing on two consecutive ballots seems downright deliberative.

I have no great principled objection to sequential ballot initiatives, each aiming to undo the results of the prior one -- at least no more objection than to ballot initiatives generally.  But I do have some questions about the political smarts.  Up until a couple of months ago, I thought the pro-marriage forces were, frankly, making a foolish mistake by trying again so soon.  Part of me still feels that way.  Regardless of the shift in public opinion that may well be happening, I wonder if there exists, for want of a better term, an annoyance effect, whereby voters who might be willing to support marriage rights will vote no, or abstain, or just not show up at the polls, based on the alacrity with which pro-marriage forces are asking the people to revisit the issue.  I have no evidence for this, but I can see some live-and-let-live types who aren't personally invested in this issue expressing either some annoyance or maybe just some fatigue, and acting accordingly.  And let's not forget that the 53%-47% margin from last time, while not a blow-out, was not exactly a nail-biter, either.  A decent amount of ground will have to be made up for the pro-marriage rights forces to prevail.

On the other hand, maybe we really are witnessing a sea change in public opinion.  The Iowa decision, coming from a non-coastal or urban or particularly liberal state, was the start.  Since then, the cascade from New England may be making same-sex marriage a non-exotic proposition, in the same way that civil unions became the moderate position on the issue in the earlier part of the decade.  So maybe this is the right time.

One thing, though, is, I think, fairly clear.  The California push, assuming it gets on the ballot (which should not be too difficult) is a massive gamble.  I've got to believe that two consecutive losses will mean that same sex marriage doesn't come to the most populous state in the union for a decade or so.  A second loss would surely stall whatever momentum currently exists and may be generated from a win in New York.  (And a California loss on top of a New York loss would be devastating.)  Quite possibly it (or they) would impact the thinking of the federal courts if and when the matter comes to a federal constitutional head.  In sum, it's a high stakes game that apparently will be played out in an off-year election (how that fact matters is not at all clear to me).  Speaking for myself, I hope these people know what they're doing.

Posted by Bill Araiza on May 15, 2009 at 11:19 PM | Permalink


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The latest on Prop 8...


Posted by: daleandersen | May 21, 2009 4:20:37 AM

The comment by gunshowsigns is one nice indication of where the debate is heading. As Bookforum put it, "If you thought Rush Limbaugh was bad, try Michael Savage, the talk-radio host whose racist, homophobic psychobabble is fueling the priorities of the GOP." People are getting more aware of the types of ugly bigotry that's fueling the anti-gay-marriage movement.

Posted by: The Face of the Right | May 17, 2009 10:17:01 PM

Is the Pasadena Police and County Sheriffs prepared to enforce Prop 8? The Gay attack on an old lady with a cross in Palm Springs, Gay mafia threats on donors, internet statement Civil Rights or Civil War, forced gay mating with straights in Ventura County by school officials creating a shooting of the gay, denying due process in court to straight student, elimination of the shooters father, holding prop 8 in court without any legal rights to question the constitution, court over ruling constitution word definition of marriage at the time of the writing of the constitution (without an amendment).... Does this sound like there will peace when the judges are recalled? Time for officers to choose sides. The law or the criminals who are bypassing the law with fascist tricks. LAW or chaos?

Posted by: gunshowsigns | May 17, 2009 5:46:59 PM

What I was getting at was that the pro-gay-marriage side appears to approach the issue as a let's-vote-until-we-win process. As soon as the pro-gay-marriage side wins in a referendum -- and I suspect that their side winning a vote in California is inevitable -- any subsequent attempt by pro-traditional-marriage activists to hold another referendum to reverse the result will be decried as illegitimate and illegal.

Posted by: Adam | May 17, 2009 4:13:34 PM

I appreciate the comments that have been posted. Andrew and Anon's exchange pretty much restates both sides of the issue as I see it.

As for Adam's comment, I'm unclear about the factual basis for his observation. I've not noticed the marriage-rights side of the issue regularly invoking the process on a regular basis; unless I'm forgetting something (which is certainly possible), the campaign I posted about is the first time that side has invoked the referendum process. By contrast, their opponents have invoked it in (at least) Hawaii and California, and either did threaten or are threatening to do so in Massachusetts, Iowa and Maine. At least one of those instances (Maine) is in reaction not to court rulings but decisions by a state legislature and governor; moreover, a New Hampshire group opposing the same-sex marriage bill there is already talking about a referendum. This count doesn't include the numerous states where citizen initiatives placed restrictions on same-sex marriage on the ballot in 2004 and 2006. It seems like that side of the debate doesn't need any prompting to regularly invoke the referendum process.

If Adam is referring to the fact that the pro-marriage rights people are trying to reverse by referendum something that was itself enacted by referendum then I can understand the comment. As my original post suggests I have some concerns about tactics -- in particular, the attempt to undo the last referendum in the very next election cycle. But I don't see any principled reason for one side to decline to use the process just because the last result went against them. Legislatures revisit issues all the time -- we always hear about legislators losing a battle and vowing to try again next year. If referendums are part of a state's lawmaking process I'm not sure why the people should be any different when they act as legislators.

Posted by: Bill Araiza | May 17, 2009 3:25:07 PM

I'm pleased that the pro-"marriage rights" side seems such a fan of subjecting the issue to regular referenda. Assuming that that side wins a referendum eventually, then surely they won't object if the pro-"well-established definition of marriage" side invokes the referendum process to eliminate that result. Right?

Or are referenda on the subject only appropriate and legal until their side wins a single referendum?

Posted by: Adam | May 17, 2009 1:25:13 PM

I don't know about that. Stating clearly to voters that "we have all the momentum and intend to play hardball until you do the 'right thing'" just has ominous overtones of "whether you like it or not...." Not exactly good PR strategy in my book.

Posted by: anon | May 16, 2009 12:12:01 PM

I tend to disgree about the consequences of another loss, Bill. Since history and demographics are on our side, I say marriage advocates need to play hardball in the way our opponents always have and state publicly that the issue will be on the ballot every single election until the state does the right thing.

Posted by: Andrew Siegel | May 16, 2009 11:27:24 AM

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