Tuesday, November 13, 2007

Bad same-sex marriage strategy in California

Andrew Koppelman

I just spoke on a panel in San Francisco, with a group of activists supporting same-sex marriage. (I’m also a supporter, and defend my views here.) Afterward the panelists had some conversations about what’s been happening in California, and they explained their current strategy to me. I came away convinced that my allies are out of their minds.

Last month, the legislature for the second time passed a bill legalizing same-sex marriage in California, and the bill was vetoed for the second time by Governor Schwarzenegger. The governor argued that the bill was inconsistent with Proposition 22, a law enacted by ballot initiative and approved by a landslide 61 to 39 percent in March 2000, which states, "Only marriage between a man and a woman is valid or recognized in California."

Same-sex marriage proponents are now pinning their hopes on a lawsuit, now pending before the California Supreme Court, arguing that the initiative law is unconstitutional and that same-sex marriage is required by the state constitution.

All of the proponents with whom I spoke, including Assemblyman Mark Leno, the author of the marriage bill, acknowledged that if they win in court, it will certainly energize the other side and lead to a new ballot initiative that would outlaw all legal recognition of same-sex relationships in California. This would be a very big deal, because California now has one of the strongest domestic partnership laws in the country, giving same-sex couples all of the rights of heterosexual married couples except the name. Opponents of same-sex marriage haven’t been able to raise the money for an initiative to overturn that, because Proposition 22 makes any action seem unnecessary to most voters. Leno and others acknowledged that there was no telling what the outcome of a ballot initiative would be. Public opinion has shifted somewhat since 2000, but not enough to be confident of the outcome.

So why overturn Proposition 22 and provoke this fight, which could wipe away one of the most progressive laws in the nation? I asked this again and again, and always got the same answer: discrimination against same-sex couples is really nasty. It’s insulting every day it goes on. We have to act against it.

I agree with them. I’m as disgusted with this discrimination as they are. But I think that, strategically, it is insane to force a judicial decision now.

Public opinion on same-sex marriage has shifted and is continuing to do so, albeit at a glacial pace. At this point, it’s opponents of same-sex marriage who want statewide initiatives to happen sooner rather than later; proponents of same-sex marriage should want to delay those votes for as long as possible.

Yes, the status quo is bad. But it doesn’t follow that we need to act without thinking. In 1942, General George Marshall rashly wanted to invade Europe; his plan was thwarted only by Churchill’s refusal to cooperate, and D-Day did not happen until June 1944. As Max Hastings explains here, Churchill had the better of this argument; the U.S. and Britain were woefully unprepared for an invasion in 1942. The case for a 1942 D-Day would not have been strengthened by pointing out that Hitler was really, really bad, nor by pointing out the damage his occupation of Europe was going to do in the next two years. Reality is reality.

So one can only hope that the California Supreme
Court declines the poisoned cup that is being offered them. They may have to torture the law to get there, but bad judicial opinions are better than bad law. (I defend the practice, which is controversial in some quarters, of judges worrying about the political consequences of their decisions in the last chapter of this book.)

There is, of course, no way to know for sure what will happen in California. Same-sex marriage might prevail in a ballot fight. Sometimes, the fool who buys lottery tickets with his rent money wins big. But he’s still a fool.

For years now, gay rights litigators have worked to keep individuals from filing ill-advised suits that would lose and set back the cause. Why, then, are they pushing this case now?


A better analogy might be to Reconstruction after the Civil War. During Reconstruction the South had numerous unpopular laws and officials foisted upon them, and that probably exacerbated the situation for African-Americans once the coercion was over.

There are many inaccuracies in this post. First, Gov. Schwarzenegger's recent veto message did not reference Proposition 22 and instead said that the Court should resolve the dispute. Second, the six consolidated marriage cases now before the California Supreme Court do not present a direct challenge to Proposition 22, but rather to Section 300 of the California Family Code, which limits marriage to being between a man and a woman. The correct understanding of Proposition 22 is that it only amended section 308 of the Family Code, which provides that marriages from out of state generally will be respected in the state. In other words, the current cases arenot arguing that section 308.5 of the Family Code, which Proposition 22 enacted, is unconstitutional, since these cases are not brought by couples married outside the state seeking that their marriages be honored. Third, these cases were filed several years ago, and were successful at the trial court. The lawyers bringing them (at the National Center for Lesbian Rights, the ACLU, Lambda Legal, the San Francisco City Attorneys' Office, and several private counsel) believe we will be successful at the California Supreme Court and amicus briefs have been filed by leading scholars who contest that it is consistent with constitutional jurisprudence for courts to consider the political impact of their decisions. In any event, there is a significant likelihood that a further initative fight will happen whether we win or lose. Efforts should be put into winning that battle rather than giving up on well0-founded litigation or trying to undermine it. The reasons for maintaining the lawsuit are not simply because exclusion from marriage is "nasty" or "insulting," but because domestic partnerships do not provide the same rights as marriage, even within California. For those interested in what actually is at issue in the litigation and what is being argued, the briefs are posted at the and at websites.

Jon W. Davidson
Legal Director
Lambda Legal

"Public opinion on same-sex marriage has shifted and is continuing to do so, albeit at a glacial pace."

And how do you think that shift started? Will & Grace?

Of course not -- it was Goodridge. Yes it sparked a backlash, but it also sparked the debate which you are now telling SSM advocates to "wait for."

Your analysis is exactly backwards. We get to take the sweet with the bitter: It was litigation that got us where we are today; it will be litigation that will carry the rest of the way.

One flaw in Andrew's analysis is that there is no way in hell that California voters will pass any initiative that invalidates domestic partnerships. If the right tries for this, they will lose, and it will hurt them because it will be an endorsement by California voters of same sex marriage.

The best they can do is an initiative to ban only same sex marriage, which could pass. But, of course, for many on the right (as opposed to mainstream gay marriage opponents who are just freaked out at using the term "marriage" for same sex unions), the whole point of this debate is to use the force of the state to discourage people from being gay, and a law that just bans gay marriage and nothing else won't get them there.

Accordingly, this may not be a dumb strategy at all.

I must agree that judges do and have to take politics into the equation when they rule. That doesn't mean that they have to back away from the implications of their decision, but they have to make the decision persuasive at both the legal and political level. Look at the difference in the political response to Brown v. Board of Education and Roe v. Wade. People who care about civil liberties don't need another Roe around to energize the authoritarians, at the federal or state levels.

Sure, it's possible to find historical examples where the actors were wise to wait. It's also possible to find the opposite -- MLK got this advice all the time. He rightly decided that 100 years was long enough.

During Reconstruction the South had numerous unpopular laws and officials foisted upon them, and that probably exacerbated the situation for African-Americans once the coercion was over.

You mean those terrible conditions which ensued when black men actually were able to vote? When, for the only time prior to my lifetime, some semblance of democracy existed in the South?

And I'm sure blacks really regretted Reconstruction once they realized that they'd pissed off those nice men who'd treated them so well under slavery and the Black Codes.

Some recommended reading here might be Rosenberg's "The Hollow Hope". While he overstates his thesis, his central point is salient to the debate over gay marriage: that litigation strategies are many times futile -- and here, as Professor Koppelman recognizes, could very well produce a backlash that has a net negative effect on the movement's overall goals.

The gay rights movement will only succeed once (enough) political elites sign on to the cause. This is starting to happen. What happened in the House last week should be extremely encouraging. Instead, some activists were angry that the bill didn't have a provision making the law applicable to trans-gendered individuals. I'm incredulous.

The gay marriage movement would do well to remember the old adage about cutting off your nose to spite your face.

Instead, some activists were angry that the bill didn't have a provision making the law applicable to trans-gendered individuals.

There was a fairly interesting exchange on Obsidian Wings on this topic a way back. At first blush, I might agree with your position (something is better than nothing), but I tend to agree with those who say that transgenders are going to have a much more difficult time petitioning for rights separately from other queer groups. Since the underlying bias has the same basis--beliefs about proper gender roles--I don't see what was gained by allowing transgenders to be excluded from employment protections.

This comment has been removed by the author.

"I don't see what was gained by allowing transgenders to be excluded from employment protections."

Um, how about moderate GOP votes for a start . . .

What was gained was getting something rather than nothing. Now, you suggest that, as a result, the transgendered will never get employment protections. If that is true, then the question is how likely it is that, by taking nothing rather than something now, we will later get protection for all. If it is likely that we would get nothing for anyone, then we ought to take something rather than nothing. If there is a chance that we would get protection for all, then we should weigh how likely that is and how much harm would done to gays and lesbians during the time that we wait. I am not competent to make these estimates.

I'm not sure if you're comment are directed at me, Henry, but if so, you misconstrue the point. NOt to be too pithy, but transgendered folks will, unfortunately, have to "wait their turn" as more and more people accept them (much as the same with gays and lesbians). I'm not saying it's right, but it's the way it is.

It’s a sobering thing to get into a public disagreement with Jon Davidson, a great lawyer and a friend whom I admire. He is technically correct about Prop. 22, although anyone but a lawyer will regard this as a remarkably hair-splitting argument. The California voters were pretty clearly paying no attention to which section of the Family Code Prop. 22 was amending, and it would be bizarre and possibly unconstitutional for California to recognize same-sex marriage for its own residents while declining to recognize such marriages contracted in other states. But I’m not arguing with him on the merits. In fact, I agree with him on the merits. The Respondent’s Brief in the California marriage case is a fine piece of work. What I heard repeatedly when I was in California is that a victory in the California Supreme Court will trigger the initiative that, thus far, the religious right has been unable to put on the ballot. News reporters close to the situation say the same thing, as I note in a link in the original post. I hope I’m wrong. But I’m worried.

Dilan writes that “there is no way in hell that California voters will pass any initiative that invalidates domestic partnerships.” I hope Dilan is right. But almost every referendum to ban domestic partnerships thus far has passed, even though polls show that voters generally don’t care much about domestic partnerships. There is still something about the words “same-sex marriage” that shuts down the brains of voters, so that they will vote to ban it without much regard to what else is in the language. I see no reason to think that California voters are appreciably more rational in this regard.

Calvin, actually I had intially posted a version of my comment before yours but removed it and reposted an improved version after yours. My initial comment was aimed at pms-Chicago (3:22 a.m.), who did not see what was gained by a bill that excludes trans-gendered people. Anyway, it goes without saying, after the House vote, that that's the way it is, but I was trying to say that whether to stand up for principle or take what you can get can involve complex calculations.

Um, how about moderate GOP votes for a start . . .

Right, and I acknowledged that it's compelling to have something rather than nothing. However, the other anti-discrimination efforts, particularly in terms of race, have made an effort to be inclusive on the basis of the underlying principle.

If we were talking about anti-discrimination laws that only protected black people, would we be applauding accomplishing something rather than nothing? Maybe. But if "some activists" were still pissed that the GOP wouldn't vote for the bill if Latinos were included, would you still be incredulous?

There is a deep divide in the gay community and in marriage equality movement between incrementalists and those who hope for a sudden, stunning victory. Here in Washington State the strategy has been one of incrementalism. As one blogger described it, the marriage proponents in the legislature are "simultaneously forcing marriage equality opponents to discuss, openly and one by one, the rights and responsibilities they would like to keep from same sex couples while simultaneously holding up [a full marriage-equality bill] as the solution to the conversation: Just pass this, and you don't have to go through the embarrassment of defending these one by one for the next decade. (During which time, cohabiting seniors and same-sex couples will see their rights gradually expanded, rather than the reverse)"

This strategy is probably the only winning one in Washington, which has a quick and dirty initiative process that can destroy legislative gains overnight. Even had the state Supreme Court held that the state constitution requires marriage equality in last year's ruling, the quick amendment process would probably have locked in the anti-gay sentiments of the moment for many years to come, and may have also barred the domestic partnerships that we're now getting.

In Massachusetts, where a constitutional amendment requires 2 consecutive years of legislative votes followed by a public vote, the lag time was long enough that the sudden win in the courts did not become a Pyrrhic victory. Marriages took place, the sky did not fall, the consciences of legislators were appealed to, and the victory was cemented.

Now I'm not familiar enough with California law or politics to judge which strategy is more likely to win full equality sooner. But given that California, unlike Massachusetts, has the initiative process available to marriage opponents, it seems that the risk of backlash may be greater in CA than in MA. Marriage supporters need to pick their battles, hold on to gains, and prevent the prejudices of an older generation from being made binding on a younger, pro-equality populace.

Re: my incredulity

Of course not (I would not be incredulous). But your analogy is severely flawed.

The fact is that to people who just now shedding the cocoon of homophobia (or some lesser version of the same) are still, to put it colloquially, "weirded out" by TGs. To them, it is a whole different animal than your "vanilla" gay man or lesbian woman who they have probably interacted with enough by this point in their lives to understand that they aren't all that different from heterosexuals.

OTOH, there was no reason, for example, Southern Dems (Civil Rights Act of 1964) to be look more warily at Hispanics as opposed to blacks or vice-versa. The same distinction that can be made w/ TGs would have been nonsensical in racial context.

Therefore, while I agree that the underlying principle is the same w/ regard to TGs and GLs, in practice it is not. Just ask the moderate GOP MCs who agreed to sign onto a bill sans protection for TGs.

Therefore, while I agree that the underlying principle is the same w/ regard to TGs and GLs, in practice it is not.

Obviously, I agree. My point was merely that those people who labor hard to create change from the position of principle, rather than practice, have a right to be upset when the latter interferes with the full satisfaction of the former. Leaving open the door to discriminate against a certain class on the basis of the same principle used to protect other classes is always unsatisfactory.

Look at all the brown, behold all the white dots.

It didn't get this way by accident you know... it got this way in response to judicial activism.

Your optimism is heartwarming, Kip Esquire. But your oppnents only need 13 more states to rafity a federal ammendment...

Provoking another initiative fight is playing with fire. A “win” in the California Supreme Court would certainly galvanize opponents to put an initiative on the ballot to amend California’s constitution prohibiting same-sex marriage (at a minimum). Looking at recent California history and likely scenarios, however, the prospects aren’t that bleak.

I’m not as cavalier as Dilan about the electorate’s refusal to do away with our existing Domestic Partnership scheme. But, the odds are stacked against such draconian amendment in California.

Perhaps more importantly, the California Supremes have been dragging their feet on this case (or… carefully considering every aspect of the case). Whatever the Supremes may do, it won’t happen until spring of 2008. I won’t bet on the outcome of the case, but I’d be surprised if an opinion issued much before June of 2008. We’ll know the timeline soon enough (once the court calendars argument).

If the court finds the marriage statutes unconstitutional (big “if” there), the soonest California would vote on an amendment would be the spring of 2010 (assuming Schwarzenegger doesn’t call another special election; his last one didn’t work out so well). That’s almost two years worth of chatter and campaigning and what not about this issue. And presumably quite a few weddings will occur in the interim.

After all that, perhaps California’s would vote to enshrine the opposite-gender requirements into the Constitution (undoing some marriages in the process?), but undoing the Domestic Partnership scheme strikes me as remote.

I may have missed it, has Professor Balkin or Andrew Koppelman or another Balkinization poster ever responded to the argument that same-sex couples should not have the conception rights that a married man and woman should be guaranteed by marriage?

I've had some discussions with people in the comments before, but I'm hoping for someone serious to take a look at the issue.

Should people have a right to conceive with someone of their own sex? My blog is if you haven't heard of this research.

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