Sauce for the goose

I don't want to rehash the whole normative vs. descriptive debate we had over the term "un-American," but voters in California disappointed me last week by behaving in a very un-Californian manner and voting for Proposition 8.

This was a ballot measure attempting to clarify the meaning of the state's constitution, restricting the application of certain "rights" to only certain Californians and not to others.

The word rights is in scare quotes there necessarily because that word cannot be made to do what Californians are trying to make it do there. Rights, by definition, are rights for all. If a "right" exists for me, but not for thee, then it isn't really a right at all, merely a privilege.

And please note that this is what has happened here. For all the scaremongering "defense of marriage" language used by supporters of Proposition 8, the passage of this silly measure actually dealt the institution a severe blow. What had been a right is now only a privilege -- a privilege that the state is free to withhold as it sees fit. Yielding that kind of power to the state is not the sort of thing that a free people ought to be doing if they wish to remain a free people.

The next thing that needs to happen has already begun -- this majority vote restricting a minority must be challenged again in the courts. California's highest court had already ruled that the state's constitution does not permit the restriction of marriage "rights" to some Californians and not to others. It's not clear to me why or how Proposition 8 would change that basic principle. The proposition was written, introduced and campaigned for as an attempt to change that ruling, but piling such after-the-fact interpretive statutes on top of the constitution doesn't strike me as the same thing as actually amending and altering that constitution, so I'm not sure what Prop 8 really changes.*

Imagine, for example, that California's legislature had passed a law stating that the Irish were forbidden from getting driver's licenses.  Such a discriminatory law would have been quickly voided by the courts. Anti-Irish bigots would have decried that ruling as "judicial activism," but that's an epithet, not an argument. The state's constitution simply will not tolerate new law that attempts to exclude particular classes of people from the same rights and protections available to everyone else. Voters might well respond to the court's decision by passing a ballot measure redefining a "driver" as a "non-Irish person," and thus excluding by semantics those whom the constitution did not previously allow them to exclude by statute, but I can't imagine the courts finding this transparent ploy convincing. This hypothetical anti-Irish proposition wouldn't be any more constitutional or legitimate than the shamefully non-hypothetical anti-gay Proposition 8 is.

Another frightfully ugly aspect of this whole affair has been the willingness and eagerness of Prop 8 supporters to lie in support of their cause. Atrios calls these folks "Liars for Christ," and the term is apt. This is a common and dismaying consequence of what James A. Morone calls "The Corrosive Politics of Virtue." One starts by demonizing one's opponents then, having established that they're demons, one can justify accusing them of all manner of absurd evils. What's a little white lie -- or two, or 20 -- when you're battling demons? Truth is a luxury you can't afford when protecting innocent babies from bloodthirsty babykillers. When you're defending your marriage against the barbarian others out to destroy the very notion of the family then you can't be expected to fight with one arm tied behind your back by the shackles of honesty, facts or reality.

Supporters of Proposition 8 were forced to resort to Lying for Jesus -- pastors will be jailed! your church will be forced to conduct gay weddings! your organist may become even more flamboyant! -- because they weren't able to articulate any honest basis for opposing this right as an equal right. The 'vixen and I got our marriage license on the same day that George Takei and Brad Altman got theirs. The wedding of George and Brad neither picked my pocket nor broke my leg, so what possible cause would I have had to object to it? What reason would I have to deny George and Brad the same happiness that my wife and I were permitted to enjoy? Such exclusion makes no sense unless we appeal to some imagined grave consequences such as those dreamed up by the Liars for Christ.

And here again we see that basing policy on imaginary fears and imaginary grave consequences leads to different, but very real, grave consequences. When we choose to make laws based on imaginary fears, we see our own rights reduced to mere privileges. This is what always happens when we place fear on the throne.

Anyway, what I'd like to see happen next in California is perhaps a bit too theatrical and maybe a bit too sarcastic. (Sarcasm isn't often constructive, people keep telling me. And maybe they're right, but it can be in-structive. And anyway it's cathartic. And fun.) I'd like to see a signature drive to get Proposition 8.1 on California's next statewide ballot. Proposition 8.1 would finish the work begun by Proposition 8, clarifying the meaning of the terms in the state's constitution to explain that the right of marriage doesn't apply to heterosexuals either.

I think supporters of Prop 8.1 should enthusiastically embrace the same dishonest scare tactics employed by Prop 8 supporters. Why, if any old straight couple is allowed to marry, think of what might happen in your church! Catholics might be forced to remarry divorced straight people! Your church might be forced to conduct Jewish or Hindu weddings! Just think of it -- yogurt and honey and a chuppah right there in your sanctuary! And if you tried to turn them away, you'd go to jail!

Either the absurdity of this would illustrate the absurd logic of the original Prop 8 or, more likely, it would go right over people's heads and the same frightened voters who supported the original measure would sign up to support Prop 8.1. With the proper wording and -- more importantly -- the proper inflection of feigned disgust and sanctimony ("they want to marry people from a completely different gender!"), you could probably even collect signatures in the same churches that helped get Prop 8 on the ballot.

- - - - - - - - - - - -

* Correction: Apparently, I have this wrong (see comments for details). In California, it seems, a simple majority of voters can actually change the state's constitution. They don't even have to worry about whether their changes make sense, or whether they contradict, say, the equal protection clause or any other part of the U.S. Constitution. You get 50.001 percent of the vote in California and you can make that state constitution say whatever you like. I can't help but think of this.

Comments

[Naked Bunny with a Whip]

Thank you for this. I feel a great deal of outrage over this...well, outrage, but I'm not articulate enough to put my feelings into words. Without lots of swearing, I mean.

[Art]

The proposition was written, introduced and campaigned for as an attempt to change that ruling, but piling such after-the-fact interpretive statutes on top of the constitution doesn't strike me as the same thing as actually amending and altering that constitution, so I'm not sure what Prop 8 really changes.

Stop right there.

Prop 8 wasn't a regular statute. It is a constitutional amendment.

Constitutional amendments, yes, can be passed in California with a simple majority of the electorate. This is why California's constitution is 110 pages long.

It is now an official fundamental constitutional principle of the state of California that people cannot marry members of the same sex, for the same reason that it is an official fundamental constitutional principle of the state of California that Stanford University (and only Stanford University) does not have to pay property tax for buildings used for education-related purposes.

[Caravelle]

Why, if any old straight couple is allowed to marry, think of what might happen in your church! Catholics might be forced to remarry divorced straight people! Your church might be forced to conduct Jewish or Hindu weddings!

And schools would have to teach kids about heterosexual sex ! They'd make field trips to bridal suites for a visual demonstration !

[Froborr]

You know, I've been thinking about this, and the truth is, there is one kind of heterosexual marriage that's genuinely threatened by the specter of successful homosexual marriage: the marriage predicated on the assumption of strict gender roles.

If a marriage between two men can work, that means there's no vital marriage-related function which can only be performed by a woman. It means men can do laundry and change diapers and cook dinner! Why, next thing you know, they might be expected to, and then where will we be? Why, marriage as a relationship between equals instead of a hierarchy with the man on top! How terrifying!

[konrad_arflane]

"your organist may become even more flamboyant!"

I know quite a lot of organists. Only one is gay (openly, anyway), and none are particularly flamboyant, really.

"Prop 8 wasn't a regular statute. It is a constitutional amendment.

Constitutional amendments, yes, can be passed in California with a simple majority of the electorate. This is why California's constitution is 110 pages long.

It is now an official fundamental constitutional principle of the state of California that people cannot marry members of the same sex, for the same reason that it is an official fundamental constitutional principle of the state of California that Stanford University (and only Stanford University) does not have to pay property tax for buildings used for education-related purposes."

It sounds like someone needs to explain to Californians how and why a constitution differs from plain ol' regular laws. Ideally, it's more than just a law that supersedes other laws in case of conflict.

Anyway, does anyone know what the odds are of this getting overturned, either by the California Supreme Court or SCOTUS?

[Jessica]

Thank you, Fred for this elegant articulation of exactly what is wrong with Prop 8.

While Art is correct in pointing out that Prop 8 was a constitutional amendment, it doesn't actually change the substance of Fred's argument, namely that the passage of prop 8 reduces marriage to a privilege and not a right.

[Alexandra Erin]

This whole sorry mess is why I think both logic and civics need to be viewed as foundational subjects taught throughout elementary school.

[Roadstergal]

I voted against it. I'm married, and I can't for the life of me concieve of any way in which my own marriage or my love for my husband was diminished in the slightest by the ability of other people to marry. Hell, I like seeing people in love commit to each other and stay together. I'm a godless heathen like that.

But I don't agree that Californians acted in an 'un-Californian' manner, as you said. California has a few loud pockets of liberalism, but there is a very deep-seated flood of conservatism that flows through the state, and it's really the majority.

Don't forget, we're the state that elected the Governator. We elected Harvey Milk, but we shot him, too.

[Art]

Anyway, does anyone know what the odds are of this getting overturned, either by the California Supreme Court or SCOTUS?

The CA Supreme Court almost certainly won't, by my estimation. They're going to try -- their argument will be that Prop 8 counts as a constitutional *revision* rather than an amendment. I.e. rather than simply adding to the Constitution it fundamentally alters major parts of the Constitution that came before, by essentially removing the promise of equal protection that several constitutional rulings in CA have already been based on.

However, given that all of these previous constitutional rulings have been based on equal protection for identity categories *other* than sexual orientation -- indeed, the reason In re Marriage Cases was a "landmark" case was that it was the first application of CA's equal-protection clause to sexual orientation -- it's a tough case to make. Whether it's moral or not, it seems to be factual that CA has historically considered its equal-protection clause not to apply to gays, and therefore encoding this in law isn't really "revising" anything.

In any case making the opposite argument is something the CA Supreme Court is unlikely to do, given public sentiment against it -- any justice who makes such a ruling makes himself very vulnerable to a recall petition from the electorate, and Yes on 8 has proven they have no compunction about using these legal bludgeons willy-nilly.

Sending it to SCOTUS is a more interesting and more sweeping solution. A SCOTUS ruling on the USA Constitution's 14th Amendment would indeed nullify Prop 8 and all similar clauses in state constitutions across the nation, and be a Very Big Deal. But for that reason I'm not comfortable sending this to SCOTUS until we have at least one conservative justice replaced by one liberal justice by appointment, which seems unlikely to happen anytime soon.

The next justices up for retirement are all liberals, and Thomas, Scalia, Alito and Roberts aren't going anywhere anytime soon. Bush being able to name replacements for Rehnquist and O'Connor rather than a Democrat doing it may well turn out to be one of the most powerful triumphs for conservatives within the Bush legacy.

[paperwight]

1) Fred, please note that Prop 8 is just one of a long series of constitutional amendments that the anti-justice religious sects have been trotting out. They started with Prop 22 in 2000 (61% passage), but that was only a statute, so in 2004, 2005, 2006, and 2007 they filed intitative petitions to amend the California constitution. Prop 8 is the result of the initiative petition that was filed in October 2007, and the signatures were submitted to the Secretary of State AT LEAST 6 weeks prior to the decision by the Cal Supremes removing a bit more discrimination from the California statutes by overturing Prop 22. Prop 8 was not "in response to" the Cal Supremes. It was intended to *prevent* the Cal Supremes from protecting the rights of a minority. It won at 52.5% -- an 8.5% downswing in the anti-justice vote from the 2000 vote on Prop 22.

2) Yes, Californians are aware that their constitution is a trainwreck thanks to the initiative process gifted to them by the Progressives just after the turn of the last century in order to curtail the power of the railroad barons who owned the state gummint outright at the time. It's actually far worse than you think it is -- the state is basically ungovernable thanks to Proposition 13 and its children. Do all y'all smartasses know how that could be changed? Guess. Go on, guess. Give up? OK, it can only be changed by an initiative campaign or a constitutional convention *followed* by an initiative campaign. Every piece of initiative reform that has been tried in California has crashed. Can't get it done. The people are more willing to live with the trainwreck than to give up the power they have to vote without deliberation on structural alterations to the state based on TV ads. "Do I want to have a beer with this piece of legislation?"

[jbrandt]

You know, this very site carried ads from google adsense supporting Prop 8. They were only visible to people in California, and contained many of the same lies against which you rail in this post here.

It looks like they exploited adsense keywords to get all over the place, often on tech blogs that are totally unrelated to politics. Here is some info:

http://adsense.blogspot.com/2008/11/block-this-way.html
http://adsense.blogspot.com/2008/11/political-ads-on-adsense-sites.html

http://technology.timesonline.co.uk/tol/news/tech_and_web/article5082577.ece

These showed up the day before the election. It was pretty classy.

[mcc]

So... there seems to be some confusion here about what exactly prop 8 is.

First off: As Art notes, Prop 8 was not a vanilla ballot initiative. It was a constitutional amendment. It does not appear to me that Fred's post was written understanding this. California ballot measures come in several flavors. One flavor would be the Initiative Statute. This is what the existing Proposition 22 law, making same-sex marriage illegal since 2000, was; this is what the State Supreme Court struck down earlier this year. Initiative Statues are just laws. They can be repealed by the legislature, or struck down by courts.

Another flavor would be the Initiative Constitutional Amendment. This is more difficult to pass, but it actually amends the text of the state constitution. As I understand, the legislature and the courts both derive their powers from the state constitution; therefore, neither can strike out stuff that's actually written into said constitution. While it is absolutely the case that "the state's constitution simply will not tolerate new law that attempts to exclude particular classes of people from the same rights and protections available to everyone else", one could alter the state constitution such that this is no longer the case. Prop. 8 strives to do exactly this.

Something Art's post leaves out, however, is that there is also more than one flavor of amendment to the California state Constitution. Specifically, California allows both amendments and revisions to its constitution. This is where I start getting a bit confused. If I look at the state constitution, sections 2 and 18, what I find is that it refers to both revisions and amendments; the only difference between the two specifically given in the text is that a revision is more complicated to pass. Both require either a majority vote of the electorate, or a majority vote by a "constitutional convention"; however, a revision also requires two-thirds of the legislature to approve the revision, before the electorate votes on it. There is no way for a revision to be introduced through the ballot initiative process.

What is the difference between the two? Well, from what I've gathered in the news, it's something along the lines that amendments simply add something to the Constitution; revisions fundamentally alter something about its structure. (The idea appears to be that the people who designed the initiative process realized there are some basic things about the California state government which should require more than a one-time 51% majority vote of the electorate to change.) This is important because the organizations opposing prop. 8 have filed a lawsuit to stop it, charging that prop. 8 would constitute a revision, not an amendment, of the constitution. This sounds consistent with both the common sense notion of "revision" and what I understand of the court's previous rulings; changing the state constitution such that it no longer guarantees rights for all classes of people, creating one special class which the state constitution explicitly exempts from some of the rights and/or privileges the state grants its citizens, would surely seem to constitute a fundamental change to the state constitution, and indeed the previous court ruling legalizing same sex marriage specifically used the word "fundamental" in conjunction with the rights they were finding to exist. If the text of prop. 8 revises the constitution, then prop 8 is not law, is not part of the constitution-- because it was passed as an amendment, but an amendment is not powerful enough to do what prop. 8 tries to do-- and the courts have the power to declare such, effectively requiring prop. 8 supporters to go back and try again using the correct (and significantly more difficult) process this time. Whether the courts will actually rule this way is way beyond my legal knowledge to predict.

[Robb]

yogurt and honey and a chuppah right there in your sanctuary!

In the excellent Sex God, Rob Bell tells of some older Jewish communities, in which the chuppah was more of a tent, in which the marriage was consumated immediately after the vows. Thus, the wedding night comes in between the ceremony & the reception.

I'd love to see a mandate for that written into law. All the more interesting if it were a gay wedding done in a church.

*****

Lying for Jesus -- pastors will be jailed! your church will be forced to conduct gay weddings!

I was saddened to discover a [deacon/elder/leader-type-guy-who-isn't-the-pastor] at my church is one of those types. I overheard him talking like this (in a strangely matter of fact tone of voice, not so much doom & gloom) to a group of folks (informally - our church wouldn't dare sponsor something like this, but many folks there wouldn't oppose it). I was, as can be expected, suddenly urgently compelled to be elsewhere.

[Thalia]

i can see my old-fashioned upbringing here, in that i still think boys and girls are somehow inherently different and that there's a reason, and that reason was biological procreation. so i have a hard time being sure that the argument against Prop 8 is cogent. however, i consider it as a telling point against the argument FOR Prop 8 that folks have to resort to such ridiculous fear-mongering. the idea that it might have been successful in this case while failing to make most people believe Obama is a OH-NOES-SEKRIT-MUSLIN-TERRRIST just makes me so sad.

just for the record, tho, it seems that both sides were using the fact that marriage did not have a real "legal" definition, (like "assault" or stuff in a contract), and both have been trying to get "their" definition used as the legal one. i'd like to make more sense, but this all makes me more exhausted when i try to put it in a line. i'll get some graph paper and get back to you.

[Keith]

Now that prop 8 has passed, California is in for quite a messy few months (or years). Firstly, they have several thousand married gay couples whose marriages either need to be annulled or grandfathered in. if they are grandfathered in, prop 8 fails because the laws will have to be changed to acknowledge same-sex marriages, making prop 8 null and void.

If California annuls all same-sex marriage, they open themselves up to thousands of discrimination lawsuits, which will either result in the amendment being overruled as discrimination or more likely, get punted up to the SCOTUS. If (when) this happens, it won't matter which justices are present or their political leanings, as their are already plenty of non-discrimination precedents that will rule in favor of the defendant in the case of Takai v. California (namely, Loving v. Virginia, one of my favorite SCOTUS cases as it makes my marriage nice and possible). It's also possible that Obama will be able to get a few new liberal (i.e. sane) Justices in place by the time Takai v. California gets to Washington.

I'm no legal scholar, but the yes-on-prop 8 folks pretty much just ensured that gay marriage will be legal in the US by the end of President Obama's first term.

[Art]

I'm no legal scholar, but the yes-on-prop 8 folks pretty much just ensured that gay marriage will be legal in the US by the end of President Obama's first term.

Keep that optimism. I'm betting you'll be needing it.

[Thalia]

I don't know about ensuring the legality, but yes, Keith, I think they've done a lot to start a fire that's going to burn them. They're bringing this to the national stage better than the gay activists have, and I don't think, ultimately, that straight-only marriage will hold.

[Tehanu]

As a Californian I'm embarrassed to be in the same state as the bigots who promulgated this thing and the idiots who voted for it. What I'd really like to see is the Mormon Church -- which urged its adherents to contribute big bucks to the Yes on [H]8 campaign -- lose its tax exemption. I'd also like to see some of the pro-gay churches, the ones who actually welcome gays and gladly perform weddings, sue the state for privileging other religions over theirs.

[paperwight]

MCC, you have most of that right and a couple things not quite right:

1) Initiative Statues are just laws. They can be repealed by the legislature, or struck down by courts.

True-ish, false, true. The California legislature is not allowed to repeal or amend statutes that have been passed by initiative without resubmission to the electorate unless the initiative specifically allows the leg to revise it. [Cal. Constitution Art 2, Sec, 10(c)] Schwarzenegger vetoed all efforts to put a referendum repealing Prop 22 on the ballot (3 tries by the state leg, I think).

2) Another flavor would be the Initiative Constitutional Amendment. This is more difficult to pass, but it actually amends the text of the state constitution.

Again, true, false, true. All initiatives require only 50%+1, even constitutional amendments. Yes, that's crazy. No, it's not a good idea to get rid of it just at the moment -- don't want to lock the discrimination in. It is slightly harder to get constitutional amendments on the ballot (# of signatures must be 8% of voters in last gubernatorial election vs. 5% for straight statutes.

Otherwise, well done.

[hapax]

i can see my old-fashioned upbringing here, in that i still think boys and girls are somehow inherently different and that there's a reason, and that reason was biological procreation. so i have a hard time being sure that the argument against Prop 8 is cogent.

Thalia, I am profoundly glad that the state in which I was married was not so "old-fashioned"; otherwise, they might require by law a check of my and my spouse's respective girl-parts and boy-parts to ensure they were in proper, "procreative" working order.

Vasectomies? On the pill? God help us, menopausal? NO MARRIAGE FOR U!

[g]

I think Prop 8 was stupid and evil and the arguments made in its favour were bullshit, but: Fred, I'm not buying the "Prop 8 turned marriage from a right to a privilege" thing. Prop 8 says that certain pairs of people aren't allowed to marry, but that was *already* true, no? (Is it legal in California to marry your parent, or to get married when both partners are already married to other people, or to marry someone 5 years old?) So if having restrictions on who can marry whom makes marriage a privilege rather than a right, then it already was one.

Even after Prop 8, gay people and straight people have formally identical rights: they can marry any other person of the opposite sex, subject to a few restrictions such as the prohibition on bigamy. What's unfair isn't that different people have different rights, it's that the specific right that's acknowledged is much more useful to some people than others. Or: that there's a specific right that everyone *should* have and don't (say, the right to marry anyone who'll have you, presumably again with various restrictions that few people mind very much. Though actually I'm having trouble seeing why "the right to marry exactly one person" is so very much less arbitrary than "the right to marry someone of the opposite sex".)

[Thalia]

hapax, that would kind of be my point. (note, i'm saying that i agree with you. i usually do, dear hapax; in fact, you usually make the point of my posting moot.)

i see it this way: "marriage," societally, for the support of procreation, makes a certain kind of sense, if it were to be defined so legally. the romantic, spiritual marriage that most people think of when they say "marriage" really has no place in legal definition. in short, i'd be happier if the government just did not call what it recognized as a contractual partnership between two people (and all those tax breaks and next-of-kin rights and so forth) as marriage, because it allows people like those idiots who pushed Prop 8 to blur the lines between religious rite and legal right. but, that's not likely to happen, so we're going to keep on having crazy-quilt marriage with 50% divorces and people who get married for the tax benefits and don't get married for the tax benefits and don't have kids and don't intend to and do it for love and jump over brooms and trot down to the justice of the peace on a whim and whatever else... so why shouldn't anyone and everyone.

do note that i do differentiate between legal and spiritual and biological kinship, and i'm all for gay partnership as well as het partnership and every OTHER kind of chosen family. i'm just wondering if my invitations to george's and ellen's weddings got lost in the mail. :)

as a polyamorous person, i'm not likely to have a group marriage anytime soon, and i'm not so much bitter as i am feeling disillusioned and out of patience.

[paperwight]

Thalia, your dislike of marriage as marriage still has got no answer for why the government should, when it offers marriage to heterosexual couples, deny it to homosexual couples. As a matter of principle, yes, it's entirely possible to envision a world where private contract would govern interpersonal relationships bearing on property, finances, and inheritance. But we're nowhere near that world, so given that we have a situation in which two consenting adults of different sexes can marry, on what grounds (other than religion or ick factor) can one prevent two consenting adults of the same sex otherwise meeting the same qualifications?

[CombatQueer]

What really disturbs me about the whole Prop 8 thing is this: The media is turning the passage of it into "Blacks and Mormons Vs. TEH GAY."

Now, I'm certainly aware that some Mormon folks and some black folks worked to get Prop 8 passed. But you know what? That's no reason for us all to start generalizing and looking down on people for their race, religion, or sexual orientation. How many times have you seen folks using the "Look at the blacks being all discriminatory against the gays" thing or the "Those Mormons, I guess if they can't marry a whole bunch of women, they don't want two dudes to be able to get married" to remind everyone that gays and black and Mormons are all a little worse that Real True Americans.

Seriously folks, cut it out.

[Thalia]

Thalia, your dislike of marriage as marriage still has got no answer for why the government should, when it offers marriage to heterosexual couples, deny it to homosexual couples.

Ah, but there you're assuming that I think the government should offer marriage to some couples but not to others. I don't believe that. But then, I don't believe the government should restrict it to couples either, but I can see the argument (from a strictly semantic sense) that it would "redefine" marriage, so I think allowing "gay" marriage is going the wrong way--we should not have the Government in charge of recognizing the result of a religious ritual as a legal standing. See, it's all tangled up, and that's why I don't like any of it.

But my point to you is, "I didn't say that the government SHOULD offer marriage to some couples and not to others, therefore, I won't be offering any reasons WHY."

[paperwight]

@Thalia: You are gravely mistaken about the source of marriage. It started as a purely secular arrangement to ensure the orderly passage of property. Then the church got into it. And what we're talking about here is what the state does. In a county clerk's office. Independent of any religious anything.

@CombatQueer: Agree with you on African Americans. Disagree (I think) w/r/t the LDS Church. It was LDS Church policy (set originally by Gordon Hinckley (sp?) in 1997) that the LDS Church would *as an institution* oppose same-sex marriage. Individual Mormons are either to blame or not, depending on the extent to which they went along with their leadership (many did not, and many are furious). But given the amount of money and volunteers that the LDS Church turned out (between 40 and 75% of the money, depending on who you ask) compared to their numbers in the state and the nation, all in the service of denying other people the rights that LDS members have, and given the level or participation of LDS members in leadership roles in the Prop 8 anti-justice campaign, I think it's fair to identify the LDS Church as an organization as uniquely responsible for driving Prop 8.

[hapax]

*sigh*

I get so tired of hearing the "well, the government already says you can't marry two women or your sister or your ten-year-old girlfriend or your goldfish, so why is saying you can't marry your boyfriend different?"

Because all of those relationships would involve changing the basic nature of the marital contract. Same sex marriage wouldn't. (This has nothing to say as to whether those changes would be desirable, or neutral. But they would be changes.)

The state interest in marriage isn't about encouraging procreation, per se. The state interest in marriage is about encouraging the creation of families as legal entities.

To put it crudely, it doesn't do the state a whit of good if you have sex with someone you love, someone you dislike, or no sex at all. It does the state a great deal of bureacratic and economic good if you have an automatic social safety net, alternate legal entity (e.g. health care proxy), default inheritor, secondary income and / or service provider, and all the other legal rights and responsibilities that are pretty much inherent in the legal status of "spouse".

The complicated, intimate, and frankly sometimes onerous burdens of these rights and responsibilities makes it logical to have this legal relationship be a matter of choice, to encourage it to last longer. (Our crappy divorce rates notwithstanding) Human pair-bonding working the way it does, it seems sensible to tie it into the already existing sexual mating system, allowing for non-exploitative variants.

If you wanted to change EVERYBODY'S legal marriages to "civil unions", that would be fine with me, but extremely unlikely in these here United States. As long as we're stuck with the conflation of the religious and civil meanings of "marriage", however, the civil meaning should operate the same for everybody.

[Jeff]

We elected Harvey Milk, but we shot him, too.

No, San Francisco elected him. One could make a case that Coors Beer elected him, when Milk made common ground with the Teamsters in support of their strike. And we didn't shoot him either. Dan White, who had other problems than Milk's sexuality, shot him.

=============================

I can think of an interesting test case to blow this thing wide open: A man marries a woman and one or the other has a sex change -- see Normal, frex. Is their marriage automatically annulled, even if they both want to remain married?

[Tonio]

i see it this way: "marriage," societally, for the support of procreation, makes a certain kind of sense, if it were to be defined so legally.

That's the same fallacious reasoning used by Maryland's high court last year. Fallacious because it could VERY easily be used to deny marriage to straight couples who are infertile by circumstance or by choice. To match Fred's idea for Proposition 8.1, I propose that Maryland formally bar marriages to all couples except those who are able and willing to reproduce. Because we're not human beings, we're simply biological Pez dispensers. ;)

[Jeff]

As long as we're stuck with the conflation of the religious and civil meanings of "marriage", however, the civil meaning should operate the same for everybody.

It's too bad that the "Lemon Test" is pretty much ignored. Part 3 -- The government's action must not result in an "excessive government entanglement" with religion -- would require ALL marrigaes to be split into a civil and religious compenent! But I don't think it would be a good idea to push this ruling, given the make-up of the current SCOTUS.

[Tonio]

would require ALL marrigaes to be split into a civil and religious compenent!

I have a serious proposal, unlike the satirical one in my previous post - only marriages performed by court officials would be legally binding. Clergy members and other private parties would no longer be able to perform legal marriages. They could still hold wedding ceremonies but they would not be legally binding. Married in the eyes of Yahweh/Muhammed/Buddha/Zarathurstra/whoever would be separate from married in the eyes of government.

[Jared Bascomb]

I'm a gay CA native, and I am royally pissed that 8 passed. I take a certain amount of small comfort that the margin was narrower than before. I also think that our side was not aggressive enough in our ads; the Yes people put out a strawman (kids) that worked beautifully, and we didn't fight back hard enough. We learned nothing from John Kerry's swiftboating.

And yes, I'm very irked at the AA vote on 8. Not the numbers - I can accept that if AA voters had gone 70% against 8 we still would have lost - but at the symbolism of that overwhelming percentage of support for 8. That was a real slap in the face.

The salt in the wound isthe explanations that some AA commentators have been offering up: same-sex marriage is a gay white men's issue; same-sex marriage isn't a civil rights issue (including the old "we can't choose our skin color but you can choose not to be gay" trope); our community has bigger things to worry about (ie, Driving While Black, gangs).

#1 completely ignores LGBT people of color and trivializes the whole issue as a trendy fad. #2 is just plain false and ignores the fact that people choose their religion and are granted protections on that basis (as the CA Supreme Court noted in its decision). And #3 is comparing apples to oranges - yes, those problems exist and they are serious, but they won't be (re)solved by filling in a bubble on a ballot.

And to be totally mean-spirited about this . . . There were a number of other state and local propositions on the ballot involving tax increases or bonding that I would not derive any direct benefit from. But I voted for anyway because it was The Right Thing To Do. And guess what? The most-direct beneficiaries of these measures I supported voted Yes on 8.

I voted for a parcel tax for increased wildfire protection; rural voters, whose homes are most likely to burn, voted in favor of 8. I voted in favor of bonds for children's hospitals and for school repair; mothers of school-age children voted Yes on 8.

They voted to make me a second-class citizen, but they get my second-class tax dollars. Of course I know that there was no direct correlation between votes on 8 and votes on the other measures; but this is just a bitterly-ironic bit of hindsight.

[end of bitter rant]

Another big culprit is the process for getting an initiative on the ballot in CA - the threshold is way too low. It makes a mockery of what Hiram Johnson and the Progressives intended.

[victoria]

Jeff, Harvey Milk's murder didn't happen in a vacuum. Dan White was both mentally unstable and homophobic, and while he may have acted alone in killing Mayor Moscone and Milk, he later had the full aid and support of a police dept (staffed by his former co-workers) who purposely botched the initial investigation because they were glad to see a f*g like Milk and f*g-lover like Moscone gone.

(See Randy Shilts "The Mayor Of Castro Street" for my source.)

[lukas]

@paperwight: LDS gay couples can't marry either, and believe me there are some ;) Many LDS are opposed to their church's policy, and some have spoken out against it. Just like black Americans, LDS are a diverse bunch, and lumping them all together doesn't help anyone.

[paperwight]

@lukas: Did you even read my comment, where I carefully distinguished between individual LDS members and the LDS Church and leadership?

[lukas]

@paperwight: Then you don't actually disagree with CombatQueer, who did not mention Church policy.

[Chrissl]

@Jeff: I can think of an interesting test case to blow this thing wide open: A man marries a woman and one or the other has a sex change -- see Normal, frex. Is their marriage automatically annulled, even if they both want to remain married?

I actually know a real-life couple like this (though not in California). As far as I know, they are still legally married, even though the formerly male partner is now described as female in all government records.

My cynical side says, perhaps it's simply that no one has noticed, this being a bureaucracy and all...

But to be serious -- I have known these particular people for years, and I've been astonished and moved to see both of them summon the courage to make such a very difficult journey. The partner who didn't change gender has been her spouse's best friend, sounding board, comforter, support system, spiritual partner, caregiver after surgery and everything else. It hasn't been an easy journey for either of them, but they seem -- amazingly enough -- to have weathered it. This is love.

[Richard]

I would just like to point out in response to: ". The 'vixen and I got our marriage license on the same day that George Takei and Brad Altman got theirs." comment.

As it turns out, my wife and I got married on the same god damn day that Britney Spears and Kevin Federline got married in a surprise ceremony. I got back from our brief honeymoon and was absolutely mortified. I eventually got over it though.

So yes, I suppose it is possible for one marriage to impact the worth of another, but the Spears-Federline disaster cheapened and degraded marriage much much more than the Takei-Altman marriage could ever hope to.

[Jim]

The word rights is in scare quotes there necessarily because that word cannot be made to do what Californians are trying to make it do there. Rights, by definition, are rights for all. If a "right" exists for me, but not for thee, then it isn't really a right at all, merely a privilege.

This is a really good point.

-------------------

Supporters of Proposition 8 were forced to resort to Lying for Jesus -- pastors will be jailed! your church will be forced to conduct gay weddings! your organist may become even more flamboyant!

Members of your congregation will wear unusual underwear! Oh, wait.

[Mark Baker-Wright]

There are quite a lot of us Californians who are embarrassed to be lumped in with the 52.5% who voted for that proposition.

Yeah, the thing passed. But nearly half of us were trying to keep that from happening!

[Mark Baker-Wright]

jbrandt,

You know, this very site carried ads from google adsense supporting Prop 8. They were only visible to people in California, and contained many of the same lies against which you rail in this post here.

It looks like they exploited adsense keywords to get all over the place, often on tech blogs that are totally unrelated to politics. Here is some info:

http://adsense.blogspot.com/2008/11/block-this-way.html
http://adsense.blogspot.com/2008/11/political-ads-on-adsense-sites.html

http://technology.timesonline.co.uk/tol/news/tech_and_web/article5082577.ece

These showed up the day before the election. It was pretty classy.

Yeah, I was annoyed to notice that on my blog site, too. I immediately went to adsense to have those domains blocked, but the damage was pretty much already done, given the proximity to the election and the nearly 24-hours it takes to block a domain.

I wasn't happy....

[Alexis]

Others have clarified the status of ballot initiatives that amend the CA Constitution, but no one has yet mentioned that the CA Supreme Court already rejected the revision argument. (You think they didn't try that argument before it got on the ballot, to make it harder?) It's possible they would change their minds, but not terribly likely. Bummer.

On a positive note, though, have to thank Fred for this:
...decried that ruling as "judicial activism," but that's an epithet, not an argument.

A perfect expression of the idiocy of that phrase.

[Mark Baker-Wright]

Others have clarified the status of ballot initiatives that amend the CA Constitution, but no one has yet mentioned that the CA Supreme Court already rejected the revision argument.

I rather expected that to be the case, but have to say, finding solid information on this has been difficult. The media simply isn't covering the actual legal actions all that well. Just the protests in the streets....

[Ember Keelty]

It's strange. I agree completely with the main thrust of Fred's post — that Prop 8 is just plain terrible — and yet I'm convinced he's wrong about virtually all of the specifics. Other people have pointed out the right vs. privilege and statute vs. amendment problems, so Ill just add that "heterosexual marriage" isn't exactly as obscure a term as, say, "dihydrogen monoxide,", and it's not as though you're going to get (many) people to vote to disband their own marriages.

Could you possibly use such tactics to ban, specifically, heterosexual marriages between Jews or Hindus? Maybe. Between Wiccans or Muslims? I wouldn't be even the slightest bit surprised.

[Mumphrey]

You know, when I read that the mayor of San Francisco was marrying gay people a few years ago, I walked right into the bedroom where my wife was reading and said, deadpan, "Well, that's it, we have t o get divorced now."
She knows me well enough to know that that was some kind of joke, so she asked me waht it was, and I told her, "Well, gays are wedding each other in San Francisco, so our marriage no longer means anything. Also, knowing that gay people can now marry has turned me gay, too. Just wait a few minutes; now that you know about this, it'll happen to you, too, in a minute or two."
So we both had a good laugh and were happy for all the happy gay San Franciscan married people.
I really don't understand why so many people get so wrought up about this. We have lesbian neighbors who live 2 houses down from us. They're great people. Their 20th anniversary is coming up later this month, and I'm hoping we can have them over for a celebratory anniversary meal or something. We have a year and a half old daughter, and it doesn't freak me out when they talk to her. I'm not worried they'll "turn her gay" or some such nuttiness. Whether she's gay or straight, she's already that way, and I just hope she someday finds someone she loves who loves her, and that they can wed and have a life together. If her husband is a husband, then great. If her wife is a wife, then that's just ass great, as long as they lve each other. I just want her to be happy, and if she is a lesbian, then I want her to have a wife she loves just as I have a wife I love.
I can't believe anybody would want to withhold that from somebody else. It sucks ass, as Dave Chappelle would say...

[Mumphrey]

Oops. Should have been, "just as great" not "just ass great."
That was a typo, nothing more; kind of funny, though, I guess...

[Ecks]

I tried to put my objections into visual form on the pale imitation of a blog I recently started. It kinda works, and was some fun photoshopping :)

[Michelle]

I thought you might like to know that a nationwide protest about this is being planned for Saturday November 15. You can find details on this page: http://jointheimpact.wetpaint.com/

Others have clarified the status of ballot initiatives that amend the CA Constitution, but no one has yet mentioned that the CA Supreme Court already rejected the revision argument.

IIRC, didn't they rule that it would be premature to make a ruling on that until after the initiative was passed? That's actually a pretty standard position for the state SC.

Also, to Fred re: Prop 8.1:

Think broader. If 8.1 is also related to marriage, people will think that that's the only right at stake. Think of the broader implications of 8, though: if a bare majority can create an exception to California's equal protection clause (which, remember, the California SC ruled must include gay marriage), then any right with which the California Constitution deals can be similarly made a "special right". Start proposing amendments which remove the equal-protection guarantee from random groups of people with respect to random rights, and people might start to get the picture.

[Dylan]

One starts by demonizing one's opponents then, having established that they're demons, one can justify accusing them of all manner of absurd evils. What's a little white lie -- or two, or 20 -- when you're battling demons?

FWIW, I think this is the real reason we saw crackpot theories like "Obama is a secret Muslim and thus a terrorist" and "Obama is the Antichrist" hit the mainstream this election. It's not because his middle name is Hussein or he's a charismatic speaker or even that he's black--those are just details to give the theories credibility. I think the real reason is that this "liberals are evil" thinking has finally hit critical mass--it's no longer just rhetoric, people are actually starting to take it to heart.