[UPDATE: Thanks to Pam Spaulding for echoing and expanding on my thoughts here; Eugene Volokh for the kind words here; Glenn Reynolds for the link here; GayPatriotWest, sharing similar thoughts, for the link here; and Andrew Sullivan for his mention here. Follow me @chrisgeidner on Twitter!]
[FURTHER UPDATE: A copy and my summary of the ruling can be found here.]
In less than ten hours, many people — hundreds of thousands, millions even — are going to be saddened, angered by the decision of the Supreme Court of California on the fate of Proposition 8. It might be people of conservative religious faiths, angered that the court overturned their vote to uphold their understanding of marriage. It more likely, though, will be those fighting to include gay and lesbian couples in that definition, feeling that having come so far, their vision of equality has been stopped short.
One way or the other, though, people are not going to be happy at 10:05 a.m. Pacific Time. It’s even possible that both groups will be unhappy, if the court determines that Proposition 8 was a valid enactment and has become a part of California’s Constitution but that the marriages of the 18,000 lesbian and gay couples who married between the court’s marriage ruling and the Proposition 8 vote remain valid.
Assuming that outcome, which I believe is most likely, I’d ask — and hope our national leaders would ask — that we all take a breath before acting. As, I wrote Friday, the decision to be issued today is a legal determination about the structure of the California Constitution and the procedures available to the people to amend it. A fair and vigorous debate has been had about whether Proposition 8 was the type of change envisioned as an amendment or if it was a revision, which would require a more lengthy and difficult process.
The California Supreme Court, at least a majority of its justices, already has shown its support for marriage equality. There can, thus, be no claim made that this court comes at the issue of gay and lesbian equality with anything less than good faith.
I understood — and participated in — rallies held across the country following the passage of Proposition 8. I understood the stark awakening that the vote was for many young LGBT people and our allies. I supported this rejuvenated “gay movement.” We have seen the fruits of that awakening in Iowa, Vermont, D.C., Maine and New Hampshire, as well as in countless other states, cities and communities across the nation.
We must not let today’s ruling change that momentum.
All weekend, Twitter and the blogosphere have been abuzz with the Day of Decision rallies planned across California and the nation. Its organizers, who include Robin Tyler and Andy Thayer, state: “[I]f the court rules against us, make sure that our angry voices are heard around the nation. Anger at denying an entire group of people our civil rights is perfectly legitimate and appropriate.”
This reasoning is incomplete, misguided and horribly short-sighted, and it is my hope that marriage equality leaders like Evan Wolfson,* Mary Bonauto and Andrew Sullivan* would concur. [Wolfson already has; see below. Sullivan agrees with the ruling, hence, logically would oppose these protests. -Ed.]
First, this is not a ruling about whether marriage equality is correct or just. This is a ruling about whether the California Constitution allows a measure like Proposition 8 to be voted into the Constitution by the people. Even if there is some overriding federal claim that marriage equality is guaranteed by the U.S. Constitution, it was not raised by the parties here.
Second, we have spent the past decade decrying those who demean the legitimacy of court decisions by attacking them. It would turn that principled stand on its head to say that this court, which previously held that marriage equality was guaranteed by the California Constitution, is somehow responsible in today’s decision for “denying an entire group of people our civil rights.”
Third, and most simply, this is not the righteous anger exhibited this past fall. This decision is likely to be a complex one turning one the intricacies of California constitutional law, as well as its common law history and principles of equity. That is not protest-worthy, however, so the decision will have to be simplified to the point of being unrecognizable in order to provide the tinder sought by the organizers to light the fire of protest in their attendees’ spirits.
Momentum is on our side, and today’s decision could provide us with a great opportunity. It is not, however, the opportunity to bash the court or otherwise misplace our anger about the slowness of our path to equality. The opportunity will be to organize, to educate and continue to expand equality across the country.
We likely will feel injured, once again, today if the court upholds Proposition 8. But, rather than some inchoate anger at the court, I actually believe the injury we will be feeling is the renewed focus on the hurtful vote of last November.
A ruling upholding Proposition 8, far from a cause for protest, therefore, will instead be a call for us — to borrow a phrase — to be the change we’ve been waiting for. Rather than spouting anger at these rallies, organizers and speakers should be spouting information about legislative battles going on in their states and counties. The California rallies should be an opportunity to sign up marriage equality precinct captains all across the state, people who will be the local voices changing minds across that state.
Anger is inevitable — and understandable — if a group of people is told, once again, that full equality is not yet theirs. Real leaders, however, would show us ways to turn that anger into positive actions that will lead to real, lasting change.
Whether that leadership comes from Tyler and Thayer or Wolfson, Bonauto and Sullivan or even, dare I hope, President Obama himself when he is in California on Wednesday, it would be leadership that I could believe in.
* = Evan Wolfson has let me know that last month he sent an open letter to California LGBT leaders, stating, in part:
Recently rumors and reports that have come to me suggest that some of these actions may include ratcheting up people’s anger, blocking traffic (streets and even freeways), and engaging in other defiant antagonistic gestures.
In my view, this would be a terrible response that would set us back immensely.
I believe that leaders such as you should start now offering up action-steps and planning for actions on the day that would help channel the hurt and anger in a much more constructive way.
Again, seeing this letter, I am reminded of the long-term scope of vision that Evan has and the blessing that we all have been given to have such a smart, tireless advocate on our side. Evan’s full letter can be found below the jump.
Evan Wolfson’s open letter regarding the Proposition 8 challenge case:
Tuesday, April 7, 2009
Dear California friends and colleagues –
As a non-Californian deeply committed to restoring the freedom to marry in California as soon as possible, I am writing to share a concern with all of you. I have worked with most of you over the past many years, and hope that as leaders in California you can help.
I know that many of you have been involved in one way or the other with plans for actions following the Court ruling. Recently rumors and reports that have come to me suggest that some of these actions may include ratcheting up people’s anger, blocking traffic (streets and even freeways), and engaging in other defiant antagonistic gestures.
In my view, this would be a terrible response that would set us back immensely.
I believe that leaders such as you should start now offering up action-steps and planning for actions on the day that would help channel the hurt and anger in a much more constructive way. I think it very important that, starting now, and as often as possible, ideally in united or parallel reinforcing ways, leaders such as you should be saying things like:
1) “Angry as we are, let’s do the math. 48% of Californians voted with us — and we need to move another 3% before the next vote. Let’s not take actions that needlessly harm or alienate the near-majority we already have, but focus on the conversations and renewed, constructive engagement that will win over the small slice we need and can get.”
2) “If each one of us doesn’t take our anger and immediately get on the phone to 5 people we know who need to be persuaded that this is unfair and that we need them to stand up for our freedom to marry, then shame on us. Anger not turned into useful action is just a waste or worse.”
And while putting out these ideas, you need to ensure that they are backed up with concrete channels — web-activism, organizing-frameworks, tools, etc. of that kind that many of you are far better than I at developing — to get people into doing this kind of activism toward the end of restoring the freedom to marry, rather than just doing something destructive.
I think it is really important that you get these ideas — and specific action-steps that people can take along these lines — out there over and over as much as possible in advance as well as having them ready and promoted for the day of decision, because we need to shape the thinking and default position as they crystallize now, let alone on that day.
My friends, I believe you owe it to each other to say how you can avert a bad result and make the right things happen. As someone who has no California turf to defend or any other agenda beyond winning marriage in California and everywhere else, I hope you take this in the spirit in which it is offered — and with a sense of hope that, having now won Iowa and Vermont in just the past few days, together we can get there.
I am eager to assist your leadership in moving things in a good direction.
Thank you –
Evan
P.S. This was my latest post on California, in case you missed it: http://www.huffingtonpost.com/evan-wolfson/will-the-california-supre_b_180720.html
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Chris Geidner is the award-winning senior political writer at D.C.'s Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
So if the protests in the fall, were valid displays of dismay in the wake of a crushing defeat for civil rights, how is it then inappropriate to vigorously protest the affirmation of that defeat?
I think you’re absolutely right, that the judiciary is dealing with a very limited legal/constitutional issue, and should not be specifically targeted as anti-gay. But I think your rationale is premature, given the decision has yet to be rendered. As legal scholars, we both have a duty to judge decisions on the merits- and you haven’t seen the merits, Chris. My critique or praise for the high state court’s decision will come *after* I’ve read it, and not a moment sooner. I appreciate the pundits’ (yourself, included) attempts to shape public opinion, in order to spare society the burden of thinking for itself. I know, however, that while jurists tend to be an insightful bunch, oftentimes their logic is incomplete (and sometimes incorrect). Hence the legal custom known as the “dissent”.
Should individuals take to the streets in solidarity and protest, I would imagine they are merely voicing their dissenting opinion- which is well within their rights. Let’s give them (for better or worse), the benefit of the doubt. Let’s assume that if protests erupt, it’s because they disagree with how the court reached it’s decision, not because the protestors are rash, angry, nonsensical, over-emotional beings. Surely they can disagree without you labeling them as disagreeable.
We have seen the fruits of that awakening in Iowa, Vermont, D.C., Maine and New Hampshire, as well as in countless other states, cities and communities across the nation.
So to be clear here: you’re perfectly happy with judicial thugs rewriting the law according to their personal desires, so long as those desires match yours. You couldn’t care less about the actual content of the law, or of the Constitution, nothing matters other than what you personally want.
That, at least, is the only reasonable interpretation from your inclusion of Iowa on that list. Or are we really supposed to believe that it’s proper for judges to make their decisions based on the whining of protesters, rather than the content of the law?
Proposition 8 is as much a populace fed up with sanctimony as anything else. The gay community has the exact same access to marriage as everyone else – it’s just their lifestyle makes the traditional definition unsatisfactory.
Marriage has only been “about love” with the advent of Victorian sensibilities and Disney and there’s no deprivation of rights in holding to the man and woman tradition. If gay activists *really* want to solve this then they’ll drop the “deprived of rights” whining and work with society to expand the nature of marriage to any two people. Such an act would pass handily in California if gay activists would lose the lies and the hate.
Sneer at the protest movement all you want– it actually doesn’t matter what the legal argument was about, it’s the fact that this ruling had implications for California gay couples. They don’t care about the legalese, they care that the end result happens to be that they won’t have equality.
Ten years ago, I would have said we were at the tipping point in public acceptance of gays as individuals and as couples. I would have predicted that those who could not come to grips with the shared aspirations that infuse us all would have been largely marginalized by now.
Gay marriage has long had my unreserved support, yet as a political conservative, I share in the widespread outrage that dramatic, fundamental, legal and social change can simply be instituted by judicial fiat. If nothing else, it seems abundantly clear that such newly shaped rights can just as easily be rescinded the same way. So too, the viciousness of highly visible, attention monopolizing, gay activists, both towards traditionalists who may not, in fact, be anti-gay, and towards gays who fail to toe a uniformly confrontational line has burdened their own cause with a divisive ugliness that has stiffened resistance and actually set what was once steady progress on gay issues back by years.
But for the intervening years of what, IMO, has been gratuitous, self-defeating, polarization, I believe that gay civil unions would now be almost universally recognized in law, and that the transition to official marriage would be well underway. Gay adoptions alone, would soon have led, inevitably, to the recognition that one class of adoptive children cannot be denied the legal benefits and protections which married parents afford them. That issue is clearly an appropriate subject for adjudication, however emotionally unsatisfying it might be as a stepping stone to equality. It would certainly take some wind out of the sails of those who argue that gay marriage undermines the family as a basic social building block! I’d suggest that activists would be well advised to occupy themselves with shoring up gay parents and adoptions instead of targeting Mormons and other gays for abuse.
While I can sympathize with activist impatience, my heart goes out to those who have found themselves unwilling parties to a political maelstrom in which the face of bigotry simply seems to have reversed itself. It is gays and straights who continue to make the case for gay marriage one quiet conversation at a time, in one shared institution at a time, who will ultimately undo that damage. Change will come with the next generation; the tragedy is that it could have come sooner.
I appreciate that you’re not necessarily rejecting the idea of getting angry — we of course have a reason to be angry, to feel hurt, to feel rejected — but that we should be sure that 1) we’re angry about the right thing and 2) we’re sure to channel that anger into something productive, something transformative, instead of participating in name-calling and blaming. It’s very common to dismiss anger as an emotion or reaction that hurts a case rather than helps it. I’m rather a fan of getting angry and letting to serve as a motivator for change. The problem is, you can’t stay angry forever; you need a chaser to keep you going.
This article made me angry.
I believe that gay civil unions would now be almost universally recognized in law, and that the transition to official marriage would be well underway. Gay adoptions alone, would soon have led, inevitably, to the recognition that one class of adoptive children cannot be denied the legal benefits and protections which married parents afford them.
trying to see if anonymouse works. sorry for the inconvinience.
The justices sold out and they did not forget the plight of Rose bird. You can pretend otherwise all you want, The state has never voted to take rights away from a group of people and had it stand. This was a revision and was not a simple amendment to our constitution. I have read the decision and do not agree with the failed logic of the Supreme’s. You don’t tell people they have an inalienable right to marry and then allow that right to be taken away without using the proper procedure, which should have been the revision of the constitution rather than the amendment. Courts do get thing wrong from time to time, and this is one of those times.
So to be clear here: you’re perfectly happy with judicial thugs rewriting the law according to their personal desires, so long as those desires match yours. You couldn’t care less about the actual content of the law, or of the Constitution, nothing matters other than what you personally want.
Exactly, if you are against the US Constitution, you are literally anti-American. There is no United States without the Constitution. This is exactly why Obama’s “empathy” judicial philosophy of treating litigants differently because of their gender and race makes me so disgusted at him. He thinks his idea of social justice and equality is more important than the rule of law. Digusting. Absolutely disgusting.
A couple of thoughts on these comments.
First off, I don’t understand why people whom gay marriage has no impact upon can be so vehement in their opposition towards it. I can understand that deep feeling for abortion even if I don’t share it. If you believe that abortion is murder than it would go to the core of your being to protect that life. Even in exceptions for the life of the mother, if in the core of you being you see abortion is murder, you cannot accept this as a condition. Murder is wrong and if protecting the mother required murdering an innocent person it too would be wrong. But marriage? If people were truly concerned about marriage they would fight against divorce. They would fight to preserve marriages, not fight to deny marriages. I don’t hear loud condemnations of Larry King (8 marriages, 7 divorces), Rush Limbaugh (3 marriages, 3 divorces), Britney Spears (2 marriages, 2 divorces. Well, 1 divorce and 1 annulment to protect the life of the mother).
Secondly, the Supreme Court pick. I guess I hear something different than Roy when I hear empathy. What I hear is that Obama is looking for a variety people with a variety of life experiences to occupy the bench. A Puerto Rican who grew up in the projects will interpret the Constitution differently than someone from Indiana who went to Catholic boarding school. Both views are valid, but both views will be different and it’s important to have a cross section of the people that make up the country represented on the court. If there was but one way to read the Constitution there would be no need to have nine members of the court, one would be sufficient. But it was written in a way that hundreds of years in the future, when there would be cases ruling on issues that didn’t exist at the time, the Constitution could still be the framework from which to work. It is a flawed document that originally included slavery and excluded the Bill of Rights. Written by flawed people who, despite their varied backgrounds and philosophies, were able to find common ground. And it works flaws and all, just like all of us.
The only reason I can come up with that someone would argue against diversity on the court is that the homogeny of the court represents the one arguing. I suppose if there were 9 balding gay agnostics on the court I might question the need for diversity on the court. But I’d be wrong. Is it the same for gay marriage? Is it as simple as, “I have mine and you can’t have yours.” I hope not. Someone doesn’t have to lose if everyone wins.
The current justice system is simply a bunch of BS.
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James, I appreciate the possibility of the informed opinion of dissent that you voice. At the same time, however, the specific reasons for protest of Tyler and Thayer that I cite, and am critiquing, are not such voices.
Accordingly, I think that my concerns stand. If they are leading the organization, I think it is right to look at and ask why they are doing so. And they have stated reasons why they will be protesting, and I have some significant problems with their reasoning.
If you, after reading the decision, decide to have a principled dissent march, I will support that, OK?
The GAO has enumerated more than 1,000 rights that are available to married couples that can never be conferred through domestic partnership. Do your homework before calling other people liars, idjit.
Actually, the Iowa decision was decided strictly in accordance with Iowa law. Iowa’s state constitution contains a very expansive clause protecting individual rights and guaranteeing equal protection of those rights under the law to all Iowans. The Iowa Supreme Court determined that there were certain rights available as a matter of law to Iowans who were married, and that there was no means of making those same rights available to same-sex couples under Iowa law unless they were permitted to marry. Therefore, the Court ruled that forbidding marriage to same-sex couples violated the equal-protection provisions of the Iowa constitution. A simple, straightforward, and LEGAL argument. Whining protesters had damn all to do with it.
True. However the states want to deal with it, the federal government does not recognize same-sex marriages. Thus, domestic partners are not entitled to Social Security survivor’s benefits, as an example.
There’s a Democratic majority in both houses of Congress. Have you considered lobbying your Congresscritter to change the Federal law?