[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 –
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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