Who Lost California?

11/8/2008--The question is, who was at fault? Like many others, I was surprised and disappointed that Proposition 8 passed, thus amending the California Constitution and in effect overturning a State Supreme Court decision legalizing gay marriage in the name of that same Constitution. I would now like to name the guilty party who caused that result.

Part of the blame goes to the dishonest leaders of the Christian right who convinced many ordinary people that there was more to this court decision than merely allowing gay people to marry. They claimed that preaching against homosexuality would next be criminalized. But, of course, free speech remains free, free exercise of religion remains free and overturning gay marriage does not prevent legislation against hate speech. Proposition 8 had nothing to do with religious liberty and anyone who says otherwise thinks the gospel needs lies to support it.

Part of the blame goes to the majority of voters, who simply lacked sufficient compassion to recognize justice when it was right in front of them.

Part of the blame goes to whatever moron thought that the way to gain the right of gay marriage in California was through a court decision. Just as a practical matter, such a decision inevitably would be met by a proposed constitutional amendment. Why would anyone think that such an election would be easily won? Surely in California legislation less far reaching but less likely to set off a constitutional amendment could have been passed. Now California is stuck with a Constitution that will have to be changed again later.

Much blame goes to the California Supreme Court. That court struck down a state ban on same-sex marriage in a 4-3 decision in May, spurring the Proposition 8 campaign. Why don’t State Supreme Courts notice that federal courts, already burned by Roe v. Wade, leave gay marriage alone? The State courts keep treating this issue as purely a legal one without considering what we in the law call prudential matters—are people ready for it? Will the legal arguments be persuasive? What will happen next? Even the terms of court decisions make a big difference. A court can strike down a statutory ban on gay marriage but leave the decision in abeyance until the legislature can deal with it, leaving open all kinds of compromises, such as civil unions, differing terminology etc. Justice Scalia once said that Roe did not really aid abortion rights in the long run because it nationalized what had been building state by state compromises on abortion and created the pro-life movement. Courts are better threats than actors and judges should remember that.

Okay, the actor, actually actors, who are most to blame for Proposition 8 are the naton’s law schools, for failing to teach an organic constitutionalism that recognizes that governance is never just a matter of principle. Law is not a science but an art. And a Constitution does not belong to lawyers but to the people. Its interpretation must always ultimately remain their interpretation. Courts can only lead.