}

Wednesday, May 27, 2009

California and time

Today the California Supreme Court upheld Proposition 8, the ballot initiative that re-banned same-sex marriage in the state. In doing so, it was playing its part in California’s drama, but only a part. I think this saga tells us a lot about the nature of our opponents.

This whole drama began, most people think, when the California Supreme Court ruled that gay and lesbian people had the right to marry under the California Constitution. However, the California legislature passed marriage equality twice, and the Republican governor vetoed it twice. His thinking on the issue has never been particularly rational or consistent, but his double vetoes set the stage for the Court intervention. It was the willingness of the legislature to enact marriage equality that motivated the religious activists, and they would have acted regardless of what made that equality happen.

The religious right got their measure on the ballot and passed it with a small—but clear—majority of votes. Legal challenges were mounted, and today the court has upheld the right of the people to amend their constitution, even if doing so strips away fundamental rights.

This was a legally correct, but morally bankrupt decision. In a democracy, people have the right to take away the rights of the minority, even though it’s immoral to actually do so. The Prop 8 ruling violated every concept of universal justice in order to uphold the injustice of the majority deciding to take away the rights of a minority.

And yet, ultimately, this will be the best thing to have happened: Marriage equality came to California by judicial fiat, something that many people—not all of them on the knuckle-dragging end of the right wing—find, at best, troubling. The speed of the change left the court ahead of the people, and the anti-equality campaign capitalised on that.

The pro-equality side, faced with a barrage of lies, smears and distortions, started branding everyone who supported Prop 8 as bigots, homophobes and even christo-fascists. I’ve argued many times that there’s no rational reason for anyone to oppose marriage equality, but that doesn’t mean those opponents are bigots or worse (even if some demonstrably were).

In my opinion, something else is going on here, something that explains our opponents: Fear.

Human beings are naturally suspicious of change and can be fearful of it, particularly when it’s sudden and seemingly imposed, something beyond their control. The right has always known this and has exploited it to keep the pro-equality forces on the back foot, constantly in defensive mode.

The winner on the Prop 8 debate would always have been the side that successfully addressed the fears of voters. The Yes on 8 folks pandered to and exploited that fear, while the No on 8 people did nothing (they could have shown, for example, there was nothing to fear).

When change is allowed to evolve, to emerge organically, people have time to accept it. That change then becomes the new reality that people are reluctant to change. So, when states in the northeast of the US moved through the legislative process to legalise marriage equality, people had time to adapt and that new reality instantly became stronger. When legislatures adopt marriage equality, it starts with a significant backing—elected politicians seldom lead on any issue out of fear of defeat at the ballot box. They support change because the majority of their constituents already do.

When marriage equality is imposed by courts, there’s an almost automatic reluctance to accept it, even a predisposition to fight it. Court-ordered marriage equality in Massachusetts looked at first like it may not survive, but five years later it finally looks like it may last—thanks to time. The other northeastern states that passed marriage equality through the legislature start ahead of where Massachusetts was (not that this will stop the anti-equality forces from trying to repeal it).

This delay infuriates some—those who want it all and they want it now. But real change seldom happens like that.

By the time the US Supreme Court finally struck down laws preventing people of different races from marrying, most states had already moved past that. On the issue of marriage equality, we’ve seen courts leading. This may have worked in Massachusetts and it may work in Iowa (where there may no quick opportunity for anti-equality activists to fight it, giving it time to become the new reality). But in California, this clearly wasn’t the case, and couldn’t have been because the activists had already been working to outlaw marriage equality no matter how it had been enacted; there could be no time between enactment and the decision on whether to repeal it or not.

So, where does this leave us? We need time. We need to allay people’s fear of change, especially on this issue. We need to engage with our friends, family, co-workers—in short, everyone we know—and explain to them calmly why this issue matters. It’s the way change has been created for generations. It’s not quick, it’s messy, it’s loaded with setbacks, but ultimately it’s successful.

Pro-equality activists in California are already promising new ballot initiatives to restore marriage equality, and that’s exactly the right thing to do. Already polls are showing that, thanks to time, voters in California are shifting their position and becoming less likely to listen to the fear mongering from the right. Our side just needs to give voters the time and help they need to go the rest of the way. Once they vote to restore marriage equality—and they will, even if it takes several tries—that finally will be the end of the matter.

So, distressing as this Court ruling may be, and as bad on some points as it was, it’s a bump on the road to victory. Like I’ve said so many times before, keep your eyes on the prize—but take everyone you know along with you. We can’t get there any other way.

7 comments:

Roger Owen Green said...

>Perhaps it's not as bad as it originally seemed? Maybe?

Arthur Schenck said...

Thanks—now I got myself into another comment discussion on marriage equality!

Steevo said...

Arthur...

I just stumbled over this post on your blog and was so impressed I stole it wholesale, lock, stock, and barrel...

With complete attribution of course.

http://steevo2.blogspot.com/2009/05/imported-essay-on-prop-8-decision.html

Props and kudos!

steevo in cali
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Anonymous said...

I found it very interesting to note your assertion that the politicians tried to lead the people in this case and that this won't work (I paraphrase)- the people neeting to decide on the change first.

It's been the opposite way around in the UK, with parliamnent taking the lead on all the big social issues and with most of public opinion dragged kicking & screaming behind.

I'm thinking of the abolition of the death penalty, abortion rights for women, outlawing racial discrimination and then the whole raft of gay equality stuff.

And yet we're supposed to have the Mother of Parliaments (though that doesn't say much for the Ancient Greeks, does it?!)

Lightning Baltimore said...

"By the time the US Supreme Court finally struck down laws preventing people of different races from marrying, most states had already moved past that."

If I'm not mistaken, those laws were not rescinded by popular vote. School integration and other related matters certainly were not. If they were, we might still have segregation in a number of states.

One thing to remember about the USA: It is not a democracy. We are a federal republic. One of the founding principles of this country was protection of the minority from the tyranny of the majority. Putting minority rights up to vote is therefore both unethical and antithetical to the intent of our forefathers. In other words, it's unAmerican.

Roger Owen Green said...

Mr. HCI - The Supreme Court ruling Loving vs. Virginia re: miscegenation was in 1967. According to a reputable poll, the majority of Americans favoring mixed marriage didn't occur until 1997. Several states still had (unenforceable) anti-miscegenation legislation on the books into the 1990s and one in this century.

So your final paragraph is totally on target.

Arthur Schenck said...

Steevo: Thanks so much! And thanks, too, for your kind words (btw, I think this is my longest blog post ever). The thing I like most about the world of blogs and podcasts and such is the sharing that goes on, so thanks for reposting this post.

Micky: It's often that way in countries with Westminster-style parliamentary democracies—not always, of course. Here in New Zealand, Parliament was somewhat ahead of the people with our Civil Unions Act and other legislation, but not way ahead. And, of course, our courts don't generally review laws; when they do, they generally uphold the law (like with the challenge to the Marriage Act (1955)'s exclusion of same sex couples; as is usually the case, the courts said it was apolitical matter for Parliament to sort out.

All of which means that things work differently in Westminster-style parliamentary democracies than in the US' system.

Mr. HCI: Actually, school busing is a really good example: I remember when courts ordered school busing to end racial discrimination in Boston, there were months and even years of resistance. That eventually went away, just as the resistance to marriage equality in that state is ebbing.

My point wasn't that courts shouldn't intervene, just that when they do they create inevitable backlashes that may undo the good the court did, as with Prop 8. Change that comes from the ballot box or even the legislature, while slower to happen, starts out with a survival advantage that court-ordered change doesn't, and that's especially true if the change awakens fear in the majority.

Even so, judicial review is important to, exactly as you say, protect the minority from the tyranny of the majority. It's just that it has consequences that may cement-in that tyranny. And I couldn't agree more: Putting minority rights up for vote is un-American—it's also always wrong.

Roger: I hadn't heard about the polls, but in this case, I'm not sure that they say much. People may have thought that inter-racial marriage wasn't a good idea, but except in some places, I doubt many would have gone to the barricades—or ballot boxes—on the issue. Which isn't to make light of those statistics, I'm just saying that maybe most Americans didn't find the idea of interracial marriage as frightening as some do same-sex marriage.