Overturning Prop. 8: No Court-Ordered Equality!


In response to California Attorney General Jerry Brown’s assertion that the state Supreme Court should overturn Proposition 8, both George Will (who is not gay) and Andrew Sullivan (who is) argue that the best move for the gay community is to wait for a legislative or ballot-based solution. Here’s Will:

Just eight years ago, Proposition 22 [defining marriage as between a man and a woman] was passed, 61.4 to 38.6 percent. The much narrower victory of Proposition 8 suggests that minds are moving toward toleration of same-sex marriage. If advocates of that have the patience required by democratic persuasion, California’s ongoing conversation may end as they hope. If, however, the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument about abortion has been by judicial highhandedness.

And here’s Sullivan:

…as a political matter — and this is a political struggle — I hope the court decides to allow Prop 8 to stand. I do not want civil equality imposed by judicial fiat in the most populous state in America — in the face of a close initiative vote. It would be a horribly pyrrhic victory. It would taint this movement’s power and message and moral standing.

I don’t think George fully grasps what the denial of marriage equality does to the souls of gay folk, and does not appreciate how we are in fact deeply wounded by the heterosexual majority in denying us core equality. But he’s right that California already provides substantive state protections for gay couples. He’s right too that recent history suggests we can easily win this in the democratic sphere and have been making amazing gains in persuading people of the justice of the cause…. [The court] need not force this now, and shouldn’t. Let’s put this to a referendum again. And let’s do the hard work to win.

I agree. I was upset when Prop 8 passed — it made my home state feel like a place I no longer knew. But the people spoke and their opinion ought to be respected. I know the courts have a role in advancing civil rights, and know that many gains for blacks were won judicially, not through legislation or ballot initiatives. But gay marriage is close to being legalized in California through a publicly passed law; achieving that through a democratic process will mean a stronger, more lasting, and more legitimate victory.

And besides, it would be too easy to call for the courts to fix the problem. Being involved in politics and activism means being disappointed sometimes. Just because you fail doesn’t mean you give up or seek redress from a higher power. You get back to work and fighter harder the next time. I suggest that the many disappointed Californians who are hoping for a court solution channel their anger and use it to win a democratic victory that will never be overturned.

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