5 ways to repeal Prop. 8

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

It’s time to stop protesting a lost election. Four weeks of fury against the passage of Prop 8, the California initiative to ban same-sex marriage, have produced plenty of anger, but no visible progress for the protestors’ cause. If anything, the victorious opponents of permitting gay couples to marry, having heard insults hurled at themselves and their churches, are more self-righteous than ever before.

For those who believe in marriage equality, a new strategy is necessary. And while it is tempting to trust the courts to overturn Prop 8, the courts ultimately can’t provide the victory that gay marriage needs. Any court decision establishing same-sex marriage will have little political legitimacy, given the recent verdict of the people.

What the cause of marriage equality needs in California is an unmistakable political victory, a vote of the people that rebuts Prop 8. Such a vote would show that gay marriage can be a political winner, and build the momentum needed to repeal federal law that bars recognition of same-sex marriage.

How to get there? Here are five steps to victory for supporters of same-sex marriage.

1. Stop the protests, apologize for protest rhetoric that went too far, and ask for dialogue with churches and religious leaders who supported Prop 8.

This would be painful for same-sex marriage supporters, who are justifiably outraged by the campaign for Prop 8. But given the election results, this is a moment to swallow pride and clear the air. Remember: to build a broader consensus for same-sex marriage, activists need to lower the temperature and win converts among those who voted for Prop 8. And many supporters of Prop 8 (and even a few opponents) were offended by the protests on churches and the anti-religious rhetoric (the attacks on Mormons were particularly poisonous).

Same sex marriage supporters — including gay rights groups and politicians who opposed Prop 8 — should seek meetings with church leaders and lay groups that backed Prop 8. Many churches and groups may decline the invitation. That’s OK for same-sex marriage supporters. Those who refuse to talk will look unreasonable. When religious organizations do agree to meet, same-sex marriage backers need to hold their tongues and do a lot of listening.

The key question that same-sex marriage supporters need to ask of their opponents is: Is there anything we can do to accommodate your concerns, while giving a small minority — gays — the right to marry? Such discussions will be difficult, but the idea would be to find convincing ways to address concerns expressed in the Prop 8 campaign about religious freedom or the teaching of marriage in schools.

Gay marriage opponents will likely try to explain that they don’t want to make a change in an institution — marriage — that they see as under threat. That shouldn’t be the end of the conversation. Gay marriage supporters might respond by expressing interest in working for policies that strengthen marriage — financially and in other ways — but don’t exclude gays.

If such discussion produces compromise, great. If not, the discussion alone may help take the hard edge off opposition to gay marriage. Either way, same-sex marriage supporters will improve their position.

2. Offer to drop legal challenges to Prop 8 in return for an agreement that social conservatives will ask courts to protect the marriages of the 18,000 gay couples who tied the knot legally in California this year.

This may be a tough pill to swallow. It isn’t. Marriage equality can’t be won in the California courts. At best, a divided state supreme court would overturn — likely on a 4-3 vote — a vote of the people. Such a decision would make same-sex marriage legal in California, at least for now. (In that event, Chief Justice Ron George, the court’s most prominent supporter of same-sex marriage, might be thrown off the court by voters in 2010). But it would be a huge political setback for marriage equality nationally.

Why? Because opponents of gay marriage would be able to argue that gay unions had been legalized against the will of the people. These opponents, instead of having to defend their efforts against the happiness of gay couples, would portray themselves as defenders of democracy. That’s a powerful political argument that same-sex marriage supporters shouldn’t give them. True victory in California would be a vote of the people to reverse the Prop 8 judgment.

As a practical matter, however, social conservatives likely would turn down the offer to trade Prop 8 for a defense of those couples now married. And that in itself would provide a public relations boost for the pro-gay marriage side. By making the offer, gay marriage supporters would show a willingness to accept the verdict of the people, and work through the political process to change it in the future. By turning down the offer, opponents would look hostile and nasty. They’d rather take away the marriages of real couples than accept a legal victory for their point of view.

3. Organize like crazy among Democratic leaning groups who supported Prop 8, especially black and Latino voters.

This is obvious, but the work needs to start now, long before the next election cycle. Respectful outreach, particularly to church groups, could lead to big gains. Blacks and Latinos overwhelmingly supported banning same-sex marriage. If black and Latino Democrats were to vote like white Democrats on the issue, same-sex marriage would win easily in California.

4. Don’t qualify an initiative until you’ve tried the legislature first.

Since Prop 8’s ban on same-sex marriage was a constitutional amendment, repealing it requires a vote of the people. Same-sex marriage supporters are already planning to qualify a ballot initiative to do just that. But there’s another, better way to secure a vote of the people. The legislature itself could draft and place a constitutional amendment on the ballot.

Why bother? An amendment that comes out of the legislature likely would have broader appeal than an initiative drafted by gay rights groups. And the effort to put together such an amendment would be inclusive. Opponents of same-sex marriage would be able to testify against it. (In fact, the legislature could become a location for the kind of dialogue I suggest in step 1). A legislative amendment would receive more scrutiny, including from the many experts employed by the legislature, making it a stronger document. Lawmakers, anticipating objections from gay marriage opponents, might include provisions making crystal clear that legalized same-sex marriage would not threaten any church’s control over who it marries or threaten any school’s control over what it teaches. .

Securing the two-thirds vote required to put an amendment on the ballot would be difficult, given the extreme conservatism of California’s legislative Republicans. But same-sex marriage supporters have nothing to lose from the exercise. If the legislature failed to act by the end of the 2009 session, there’d still be time to qualify an initiative for the next statewide elections in 2010.

At the very least, the attempt to use an inclusive, legislative process would give gay marriage supporters the political and moral high ground. After all, their opponents, in qualifying Prop 8 for the ballot, never sought the other side’s opinions.

5. Show a little patience and delay the vote until November 2010.

Some same-sex marriage supporters, understandably, may want a vote to repeal Prop 8 as soon as possible — in the statewide primary elections in the spring of 2010 or even in the fall of 2009 if Gov. Schwarzenegger calls a special election then. But waiting for the general election is crucial. Unlike primary or special elections, which tend to attract mostly partisan voters, a general election would draw more independent voters, unaffiliated with either party.

In California, these voters tend to be younger than the electorate as a whole. They also are broadly supportive of same-sex marriage. In fact, all age demographics — with the exception of voters over 65 — opposed Prop 8. Victory is just a matter of time.

And not too much time. With an upbeat, well-run campaign, legal same-sex marriage should pass in California. If its supporters have the discipline to follow these five steps, the election results next time won’t even be close.

Share this article: Share on FacebookTweet about this on TwitterShare on LinkedInPin on PinterestEmail this to someone

Comment on this article


Please note, statements and opinions expressed on the Fox&Hounds Blog are solely those of their respective authors and may not represent the views of Fox&Hounds Daily or its employees thereof. Fox&Hounds Daily is not responsible for the accuracy of any of the information supplied by the site's bloggers.