Hail to the Victors!
(Here's Hoping at You, Kid)
"What Did You Expect From an Opera? A Happy Ending?"

On Proposition 8
(with surprise guests Benjamin, Peter and Franz)

Broken by messtiza

Before leaving politics behind and returning to the "culture and nonsense" theme for which this weblog is known, I feel obliged to remark on Proposition 8, the anti-gay marriage initiative that appears, at this point, to have passed ever so narrowly.  I am on record in opposition to Proposition 8, and I am more than somewhat disappointed in my fellow Californians for voting as they've done, especially by such a frustratingly close margin.

At this writing, with something like 99.5% of the ballots counted, the Secretary of State shows the margin to be 52.5% "Yes" to 47.5% "No," a difference of just under 500,000 votes statewide.  Non-Californians should keep in mind that a "Yes" vote was a vote to amend the California Constitution to eliminate same-sex marriage by declaring that

Only marriage between a man and a woman is valid or recognized in California.

So "yes" meant "no" to same-sex marriage, and vice versa.

Proposition 8 amends the state Constitution, rather than enacting a new statute.  Other than that, it is identical to Proposition 22, which Californians passed by a better than 60-40 margin in the year 2000.  The California Supreme Court invalidated Proposition 22 earlier this year, on the ground that it violated the rights of citizens to equal protection of the laws when those citizens wish to marry and happen to be of the same sex.  The equal protection analysis referred solely to the California state Constitution; there has not been any particular indication from the U.S. Supreme Court that it would be inclined to consider same-sex marriage to be encompassed within the federal equal protection guarantees of the U.S. Constitution.  Because the California Supreme Court framed its decision in terms of what the state Constitution does or does not permit, the proponents of Proposition 8 took the direct and practical approach of amending the state Constitution to reinstate the policy of Proposition 22.

If there is any comfort to be had for gay marriage proponents in yesterday's results, it may come from comparison of the county-by-county map for Proposition 22 from 2000 with the county-by-county results for Proposition 8.  While the opposition to Proposition 22 prevailed in only six counties, sprinkled in the general vicinity of San Francisco Bay, Proposition 8 opponents carried the day in fifteen counties, spreading north, south and even to far-flung Mono and Alpine Counties on the Nevada border.  The maps tell the tale: over the past eight yeare there has been a substantial decline in total voter opposition and a significant geographical spread of support for same-sex marriage.

A number of disappointed commentators have criticized the California Supreme Court for bringing about marriage equality, temporarily, by judicial action rather than leave the issue to legislation or the ballot.  Megan McArdle's comments can stand for many others:

In general, courts are the wrong place to press these sorts of claims.  The courts were appropriate for civil rights because blacks were literally denied the right to participate in the legislative democratic process.  And on a practical level, they worked because a majority of people in the country were more than happy to force civil rights on an unhappy white southern minority.  Unfortunately, too many groups have decided that the success of civil rights can be widely applied to circumvent the electorate on issues where there is no public consensus.  Now widespread gay marriage seems quite a bit less likely for the near term than it would have been had we attacked the issue legislatively.

Equal protection challenges, however, have traditionally been the province of the courts.  The state Supreme Court's view was not that it was "creating a new right" to gay marriage, but that it was eliminating a barrier that stood between same-sex couples and the existing right to marry that every other couple enjoys.  The Court majority held that there are insufficient differences between the two groups to warrant different treatment.  Couples are couples -- just as in the Civil Rights era courts repeatedly held that people are people, each entitled to the same treatment under the law.  Proposition 22 created an impediment to equality among people, and the Court declined to enforce it.  Proposition 8 reinstates it.

At LA Observed, Kevin Roderick notes the declining numbers as one works down the ostensibly "progressive" positions on the California ballot: there is a decline of nearly a million votes between supporters of Senator Obama and the (successful) opponents of Proposition 4, the latest in our recurring line of anti-abortion "parental notification" proposals.  Proposition 4 opponents outnumber opponents of Proposition 8 by another quarter million or so.

Professor Bainbridge has the most interesting purely-legal take on the "what's next" question.  Because the definition of "marriage" is now ensconced in the California Constitution, one can't very well claim the ban is "unconstitutional".  The counter-argument apparently turns on how Proposition 8 got on to the ballot and whether it is an "amendment" or a "modification" of the state Constitution -- the sort of distinction that the legal conceptualist in me adores and that drives Real People crazy. 

  • In an update added while this post was in preparation, Professor B cites to his UCLA colleague Professor V [for Volokh] and concludes that Proposition 8 is most likely an "amendment," and therefore here to stay.
  • The original post includes an embedded YouTube version of the original, highly effective, pro-Proposition 8 ad, featuring the premature triumphalism of San Francisco Mayor (and likely 2010 gubernatorial candidate) Gavin Newsom.  Removed from its gay-marriage context, my wife is of the opinion that Newsom's crowing "It's gonna happen, whether you like it or not" would make a great -- and really annoying -- ringtone.

~~~

In a transitional move back to the "culture and nonsense" front, let's throw in a gratuitous reference to one of the premiere gay couples of the 20th Century: composer Benjamin Britten and tenor Peter Pears, who knew firsthand "the difficulties involved in maintaining a virtually open homosexual marriage in the sexually repressive 1950s." 

Although the post itself has vanished in a server accident, Tim Mangan a few weeks back on the OC Register Arts Blog embedded this video, in which Ben at the piano accompanies Peter in a selection from Schubert’s “Die schöne Müllerin”:

Coming soon: more culture.  Also more nonsense.

~~~

[Photo: "Broken" by Flickr! user messtiza, used under Creative Commons license.]

Comments

Tim

Yeah, the video I posted went away. I'm having some technical difficulties on the blog right now (soon to be fixed I hope), but I can't post videos at the moment.

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