[Volokh] Dale Carpenter: Losing California:

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Posted by Dale Carpenter:
Losing California:
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1225916337


   Last night I stood in the heart of San Franciscoâs Castro district,
   the epicenter of the gay-rights movement. Around me were thousands of
   people cheering and dancing for Barack Obamaâs victory and for the
   promise it brings gay America. Meanwhile, on a large screen
   broadcasting local news it became more apparent with every passing
   hour that 97% of Californians had voted on the marriages of the other
   3%, and a majority had found them wanting.

   Over the next few days there will be a strong temptation among
   gay-marriage supporters to put on a brave face. It will be noted that
   the vote was close, 52%-48% (with absentee ballots still uncounted),
   which is both heartbreaking because it was winnable now and
   encouraging because it is winnable soon. We narrowed a gap that stood
   at 22% eight years ago, when Californians last voted to ban gay
   marriage, to just 4% yesterday. âDonât worry about it,â I was told by
   one reveler who noticed I wasnât exactly joining in the celebration
   swirling around me last night, âthis will be back on the ballot again
   as âProposition Whateverâ and weâll win.â

   Others are banking on a judicial end-around either through federal or
   state courts to overturn Prop 8. Gloria Allred, one of the attorneys
   spearheading the litigation that ended in the California Supreme Court
   marriage decision in May, has already imperiously announced she will
   file a lawsuit premised on what sheâs calling a ânew and controversial
   legal argumentâ for why this constitutional amendment is
   âunconstitutional.â Canât wait to see that one.

   Civil rights movements, we are often and correctly reminded, are not
   linear projections moving inevitably into the future. They take two
   steps forward and one step back. Last night, we will be told, was just
   a âstep backâ in a long fight. Besides, we are often reminded that the
   trajectory is in our favor, with attitudes changing very rapidly,
   especially among younger voters who simply do not understand why
   anyone would oppose letting gay couples marry.

   There is something to all of this. I have always believed the fight
   for gay marriage would be decades long: a few initial judicial
   victories to get the ball rolling, accompanied by a fierce backlash,
   and then a long slog through state legislatures (and sometimes
   courts). In the next couple of years, I expect we will see full
   recognition of gay marriage by the state legislatures in New Jersey
   and New York, where Democrats took the senate last night for the first
   time in decades. I can foresee in the next decade gay marriage in most
   if not all of New England and some of the other twenty states that
   havenât constitutionally banned it. California was a big prize, and
   would unquestionably have hastened things politically and legally, but
   there are others.

   But the narrow margin of yesterdayâs loss masks some hard facts for
   the gay-marriage movement. Counting the losses for gay marriage in
   Arizona and Florida yesterday, we are now 0-30 in ballot fights. In
   California, we lost under circumstances that were as favorable to our
   side as they are likely to be for some time. We lost in deep blue
   territory on a blue night, when Obama carried the state by an
   astonishing 61% (running ahead of the opposition to Prop 8 by more
   than 13%). We lost despite being on the ânoâ side in a ballot fight,
   with the built-in advantage that gives you among those who vote ânoâ
   on everything out of understandable proposition fatigue. We lost
   despite the state attorney general changing the ballot title to
   reflect that it âeliminates rights,â something most Americans donât
   like to do no matter the subject.

   All of this suggests to me that actual support for gay marriage in
   California is something less than the 48% vote we got. My best guess
   is that actual electoral support for gay marriage in California is
   somewhere in the low 40s, when you factor out ballot fatigue, the blue
   tide, and the favorable ballot title â all of which you would have to
   presume in trying to reverse Prop 8 in a future initiative requiring
   an actual âyesâ to gay marriage. And, of course, to reverse Prop 8
   we'll have to raise lots of money and put together a petition drive
   just to get to the ballot. My estimate is that last nightâs loss â
   barring federal or state judicial intervention to undo Prop 8, which I
   regard as unlikely â means there will be no gay marriage in California
   for at least a decade.

   Something else, however, concerns me even more than whether particular
   tacticians can manipulate a vote by a sufficient few percentage points
   to eek out a narrow win in the next few years in California and other
   states. That something else is much deeper.

   Over the past few days Iâve volunteered at various sites in the Bay
   Area trying to get people to come out and vote against Prop 8. This
   included speaking at a rally, distributing literature, and holding up
   signs to passing motorists. While I got an overwhelmingly favorable
   reception, not surprising for the Bay Area, I saw firsthand an angry
   and ugly underbelly of the opposition to gay marriage. I was called a
   âsicko,â had the Bible cited to me more than once, was asked whether
   Iâd want my "own child to be one,â and was told that âtheyâ molest
   lots of children, among other things.

   The reality is that to a very large part of the country, and even in
   the bluest parts of the bluest states, homosexuality is not seen as
   normal and gay relationships are not seen as healthy and contributing
   to a societyâs well-being. Whether thatâs because of religion or
   because of the âickâ factor or some combination of the two, it doesnât
   much matter. Itâs there and itâs only grudgingly and slowly giving up
   ground. This is especially true among blacks, some 70% of whom voted
   for Prop 8 yesterday even as they overwhelmingly supported Barack âGod
   is in the mixâ Obama. (Whites and Latinos narrowly opposed Prop 8.)

   The smartest leaders of the gay-marriage movement know all of this.
   Thatâs why gays were invisible in the No on 8 campaign. The literature
   I handed out talked in generalities about âdiscriminationâ and about
   how it was âwrongâ and âunfairâ to take away marriage from some
   unnamed group of people. I scoured the literature and found no
   reference to âgays.â The No on 8 ads featured almost no gay couples,
   and especially no gay-male couples, who are especially repugnant to
   many people according to polls. In one ad, Senator Feinstein was even
   agnostic about gay marriage itself (âHowever you feel about marriage .
   . . â).

   Iâm not faulting the No on 8 campaign for this strategy. I believe it
   was the only strategy that had any chance of winning under the
   circumstances. If the campaign had frankly presented the case for gay
   families and marriage we would have lost yesterday by a much larger
   margin. No on 8 leaders were trying to dislodge in five months what
   people have been taught for a lifetime about homosexuals and marriage.
   They were also trying to move a small group of people who donât know
   what they think about gay marriage. They raised about $40 million, a
   record for a social-issue proposition fight, and about on par with the
   largely Mormon-driven fund-raising on the other side. Given the size
   of the task, itâs amazing that No on 8 nearly succeeded.

   I also don't fault the California Supreme Court for yesterday's loss.
   Prop 8 was going to be on the ballot yesterday no matter what the
   court did, and, aside from the merits of their decision, the justices
   arguably helped the cause by setting a context in which a "fundamental
   right" was being "eliminated." Despite the ads by the Yes on 8
   campaign trying to stoke populist resentment of activist judges, I
   doubt that many people who otherwise supported gay marriage voted for
   Prop 8 just to smite the arrogant tyrants in black robes.

   Mostly, my heart breaks for the gay couples and their children who had
   a five-month window in which their families could celebrate the
   ultimate expression of commitment and love our culture knows. There
   was nothing academic about any of this for them. They donât really
   care whether they get to marry by court decree, or legislation, or
   proposition. They simply want the protection, security, and support
   they believe marriage gives them. They want their families and
   communities to understand how much their relationships mean and how
   fiercely they will fight to protect the children they love. Over the
   past few days, Iâve fielded questions from some of them looking for
   some reassurance about what happens now, but I do not know what is
   going to become of their marriages. (See [1]Eugene's interesting
   speculation on that topic.) Today, they have no idea whether they have
   just been divorced by their fellow citizens.

   On Sunday, I spoke to a rally of about 100 of them in Vallejo. It was
   held in a park bordered by rolling and largely barren, brown hills,
   which funneled a chilly wind onto us. The park was empty. It was all
   gay and lesbian couples, many of them with young children. Some had
   gotten married already and others were planning to do so before the
   vote, just in case. They were wearing red and carrying signs. They
   were full of hope. They would be heading out that day to form a human
   sign constituting the words âNo on 8" by the side of the freeway,
   trying to capture the attention and hearts of thousands of passing
   motorists in a state of 40 million people. It seemed an impossibly
   small group taking on a lot for themselves.

   We are going to get gay marriage in this country, but that day is now
   a little farther away.

References

   1. http://www.volokh.com/posts/1225907782.shtml