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DISPUTATIONS: Learning From Prop. 8 (Part Two)

In a major setback for gay marriage advocates, California voters passed Proposition 8 on Tuesday. Over the next couple of days, TNR's managing editor Richard Just and TNR's legal affairs editor Jeffrey Rosen will be debating the appropriate lessons to draw from the defeat. (Read Rosen’s opening argument here.)

Dear Jeff,

You and I both believe in gay marriage; our disagreement is about means, not ends. Moreover, while I am devastated about what happened in California on Tuesday, I agree with you that, in the wake of a loss of this magnitude, any movement needs to at least be willing to ask whether its approach has been the right one. Legitimate anger at the ugliness of what has just taken place in California--and I do think ugliness is the right word to describe what 52 percent of California voters did on Tuesday, as well as the right word to describe the cynical campaign of disinformation and raw bigotry that backers of Proposition 8 conducted over the past few months--is no excuse to avoid the fundamental questions we are asking here: Has the gay rights movement screwed up by working through the courts? And have the courts screwed up by reading the right to gay marriage into various state constitutions?

But, while I agree with you that these questions are important to ask, I think the answers are a bit less straightforward than you do.

As I wrote when we had our first exchange on this subject back in May, I think it makes sense to begin by disaggregating the strategic question (has the gay rights movement screwed up?) from the normative one (was there, prior to this Tuesday, a legal right to gay marriage in the California constitution?). I’ll take the normative one first. At some level, this question is moot, because what’s done is done in California; after Tuesday, the state’s constitution clearly no longer contains a right to gay marriage. But it is worth considering the question of whether Tuesday’s results suggest that the California marriage case was wrongly decided in the first place. After all, there will be other similar court cases in other states in the months to come, and so the question of whether there is a legitimate basis for reading gay-marriage rights into state constitutions remains quite relevant--even if it is no longer relevant in California.

I know you believe that, if California voters had rejected Proposition 8, then it would have vindicated the court’s ruling. But can it really be a true that a constitution contains a right if 52 percent of voters approve of that right, but does not contain the right if only 48 percent of voters approve? Is constitutional analysis really that flimsy? To put it another way: You mention that Brown v. Board of Education was backed by 54 percent of the American public at the time it was decided. But would Brown have been wrongly decided if only 49 percent of Americans had favored integration? Moreover, for all practical purposes, Brown applied to one particular region of the country. And, in that region of the country, there is simply no way that a majority of citizens in 1954 favored integration. (Indeed, if they had, then Brown would not have been necessary in the first place.)

It seems to me that there has to be a sturdier basis for constitutional analysis than the results of a 52-48 vote. Neither of us is an originalist; we both accept that the meaning of words in constitutions (both state and federal) can be reinterpreted as notions of human decency, progress, and liberty evolve over time. Of course, determining what vague words written long ago mean in the present moral context has to be done with reference to some sort of public consensus. But I think the metric that you’re using for making this determination--four percentage points in a heated election, in which public opinion swung several times from one side to the other--is too narrow. There are other data points that strongly suggest a contemporary reading of the California constitution’s equal protection clause ought to bar discrimination against gays and lesbians. Chief among these is science. Our understanding of what causes people to be gay has radically changed in the past generation. Fifty years ago, people would have scoffed at the notion that sexual orientation was an immutable category similar to race or gender. Today, that idea is widely accepted, at least by psychologists and others who study the subject. There are other data points, too. The overwhelming majority of young Californians support gay marriage, which suggests that, at some point in the next generation, there will be a widespread moral consensus on the issue. In other words, it’s clear where history is headed on the subject, even if only 48 percent are there now.

I don’t dispute that Tuesday’s results retroactively complicate the legal basis for what the court did in May. Immediate, short-term public opinion is clearly one of the data points that ought to go into determining whether there is a moral consensus for reading a new meaning into a constitution. But is it really the only data point? Or even the most important one? After all, we prefer to live in a constitutional democracy rather than a pure democracy because we expect our constitutions (and the people charged with interpreting them) to provide some check on the majoritarian political process. If immediate, short-term public opinion were the only factor in deciding whether to read new understandings into constitutions, then constitutions wouldn’t be necessary in the first place; the more democratic branches of government could just act based on popular opinion, and that would be the end of it. But then minority rights would often be left unprotected. Courts, it seems to me, are, and ought to be, more than just vehicles for predicting and ratifying popular opinion.

As for the strategic question: Have we screwed up the fight for marriage equality by resorting to the courts? First, I am not convinced that the backlash against gay marriage is fueled primarily by a dislike for judicial tyranny. Rather, I think it’s fueled primarily by a dislike for … gay marriage. Which is to say that, however gay marriage comes about, there is going to be a backlash. The Defense of Marriage Act, after all, passed Congress in 1996, seven years before the first state court imposed gay marriage. Let’s say Governor Schwarzenegger had signed gay marriage into law after it had passed the legislature. Would anti-gay marriage forces have been any less eager to pass Proposition 8? Would the religious right have been any less generous with its funding of anti-gay television ads? And as for the voters themselves: Did Californians really vote primarily on process rather than substance this week? Were they really voting on judicial tyranny rather than the actual question at hand?

Social change provokes backlash no matter how it comes about--whether it happens through the courts or through the legislatures; whether 48 percent of the population approves (as in the case of California and gay marriage) or 54 percent (as with Brown). In fact, I think it’s odd to cite Brown as a model here, since Brown heralded not just the most important social change in our country’s history, but also sparked arguably the most sustained backlash, one that lasted for decades and in many ways still informs our politics today (just look at this week’s electoral map--which still, a generation after Nixon’s southern strategy, features a blue north and a mostly red south). Sometimes, the only way not to provoke a backlash is not to have change at all.

Second, I think it’s important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success. Thanks to courts, we have marriage equality today in two states (Massachusetts and Connecticut); without courts, we would have marriage equality in no states. Would the gay rights movement really be better off with no court-imposed gay marriage--and therefore no gay marriage at all?

You blame the 2003 Massachusetts decision for leading to gay-marriage bans in 30 states. I would put the numbers a bit differently. In states where courts have imposed gay marriage, we are now two for three in terms of making the ruling stick. (We lost in California. But in Massachusetts, where polls swung in favor of gay marriage within a year of the first same-sex marriage, we have effectively won. And likewise in Connecticut, where voters this week rejected calls by conservatives to hold a constitutional convention for the purpose of overturning the state supreme court’s ruling on marriage equality.) By contrast, in states where courts have not imposed gay marriage, we are zero for 47. And, in many of these states (New York, for instance), this has not been for a lack of effort on the part of gay activists and the politicians allied with them.

Even after Tuesday’s result, I am still convinced that the single most important element in changing minds on gay marriage is to show it happening in practice--to show the joy and fulfillment and stability it brings to people and to communities; and to show that it has no effect whatsoever on the integrity of straight marriages. The fight to win gay-marriage rights in as many places as possible should therefore be taking place on all fronts--in legislatures, in governor’s offices, and in courts. And to surrender now on one front--which just so happens to be the only front where we have had any success--strikes me as unwise. California was a debacle; Massachusetts and Connecticut were not. I think we need more data points before we conclude that gay marriage won through the courts is, on balance, a liability rather than a way of gradually beginning to change people’s minds.



Richard Just is managing editor of The New Republic.

Click here for Jeffrey Rosen's original argument.