Prop 8: The Court and the People

Earlier this morning, the California Supreme Court released its decision in the marriage cases.  It’s been pretty clear for a while that they would uphold Proposition 8 and refuse to nullify existing marriages.  I’d like to talk about why that is not necessarily a bad thing, a position that I know is sort of  unpopular, but which is not an endorsement of bigotry or stupidity, qualities I don’t actually think California’s citizens are guilty of en masse.

You wouldn’t know that, by the way, if you, like me, worked in the State Building, where the Supreme Court is located.  The sign-waving people were out in force this morning.  But then they always are.  Today, they were hating California’s gay and lesbian citizens.  Last year, it was women who wanted abortions.  A few decades ago, it was African-American Californians who wanted a decent public education.  All they do is switch out the slogans and pictures — but the message is the same.  Those who are different are scary and hateful. 

But those people are so clearly a minority.  Having skimmed the court’s opinion, it’s obvious from its tone that the court feels no sympathy for the social views of those who passed Proposition 8.   In fact, their earlier opinion in the marriage cases, the opinion in which they announced that the California constitution is violated when marriage is made unavailable to gay Californians, makes their views about the civil rights issue quite obvious. 

I’m not sure what I’d have done if this was MY issue to deal with, but I’m going to guess that their limited view of their role in this debate is not a tragedy.  Look at one of the great civil rights decision of the 20th century, Brown vs. Board of Education, and then ask yourself whether the public schools in the United States are still segregated and you will see the limits of a court’s ability to change the way Americans think about those who are different.  Judicial efforts to integrate the schools have not been huge triumphs, at least not at the local level.  Even in a city like Berkeley, where I live, the public schools, particularly in the lower grades, are largely filled with children from poorer households, children who are overwhelmingly African-American and Hispanic. 

Why is this?  It’s complex, but my guess is that parents — even in places like Berkeley — didn’t like being told to drive their children across Berkeley to kindergarten.  And they are no more comfortable with racial and economic differences than their counterparts in less obviously liberal communities across the country, a discomfort that cannot be mitigated by a judge telling you that you must ignore your fears.  This discomfort can only change with familiarity with difference and good will — something we are all capable of, I’m certain.  When California’s generous financing of public schools was dismantled by Prop. 13, private schools became even more attractive to wealthier, white Californians, and gave well-meaning,  liberal, white people cover for pulling their kids out of public schools, and, well, there you have it, a story that’s true across the country and one I think is still being told.   

My point is this:  there’s only so much the judiciary can do and California’s Supreme Court has done about all it feels institutionally capable of doing.  It’s announced an important principle, one that isn’t popular with some Californians.  The thing to remember is that our attention is now very much focused on this issue in a way that it hasn’t been for decades. And most of the people who are now thinking about whether it’s okay to say gay people can’t marry are not in front of my building wavy nasty signs.  They’re thinking about how Mr. Sulu from Star Trek married his partner last year and how they’ve always liked him and that show.  Or about the teacher at the school where their kids go who got married last fall and looked really cute in those pictures where she was wearing a tux, and really, why shouldn’t she wear a tux?  I think it’s undeniable that we have begun to see that we are not so different from each other after all. 

Today the message is really that the courts cannot force social change to happen, not alone, anyway.  The thing to focus on is that the people can do and should do a lot more than the judiciary in this area.  The Proposition 8 opponents ran a poor campaign.  Much thinking needs to be done about how to run a better one.  It’s clear that the majority of Californians did not support Proposition 8.   They need to make that point much clearer, the next time this issue is on the ballot.  

And then somebody really needs to think about the wisdom of running our state government through initiative, an experiment in populism that has so obviously failed us — everywhere you look, you can see how California’s institutions have been weakened and even ruined because of whimsical and short sighted initiatives — Proposition 13 being the most obvious.  A proposition that bans the whole initiative process is looking very good to me at this moment. 

There’s more to be said, and more will be said, on this issue.  But I am going to guess that in the next five years, there will be another initiative, one amending the constitution to reflect the views of most people in California and that initiative will not look like Proposition 8.


9 thoughts on “Prop 8: The Court and the People

  1. A very sad day for a lot of people though…
    The fight will be back and those who care about this issue will be better prepared to take it on.

  2. It is indeed a very sad day. The point I wanted to make though is that I do not think this opinion can be seen as a triumph for those who are proponents of Proposition 8 — quite the opposite. I also believe that the passage of Proposition 8, like the re-election of George Bush, is a pyrrhic victory — a painful, painful way for the people to learn how unwise certain paths are and to choose the better path when they see how unwise they were. It’s a costly way to run things, that’s for sure.

  3. It is a sad day…but I really appreciated your email earlier and your thoughtful response here. I do agree with you — the system that allowed us to get where we are is broken, and this may not be something that needs to be decided in the courts. The process of change is so slow, so painful, and yet it’s happening. There’s momentum, and it’s shifting, and events like today, as awful and painful and hateful as they may feel, do open a few more eyes each time.

    I take heart in the fact that 18,000 couples were allowed to stay married…and in the fact that that sets up a completely unfair dichotomy that the courts are going to have to address.

    And I would fully back a proposition ditching propositions. As a new voter in the state last year, I was utterly baffled by the entire proposition system…I felt like I’d studied so many of the issues and, yet, still needed to bring a cheat-sheet with me to the ballot box. That is ridiculous.

  4. Lily, Now that I’ve had chance to read your post, I can comment more than I did on your FB page, though I’m not sure that I will be any more coherent. I understand what you are saying, and I agree, to a point. I can’t speak to California law, but it doesn’t seem right to me that any government can dictate that marriage is only an option for heterosexuals. I think it is a sad commentary that the CA courts finding that the state marriage laws were discriminatory could be so easily and so quickly overturned by a ballot initiative. Changing a constitution should require a process that is thorough, thought out, and considered over time and not simply a matter of who has the better (or more frightening) marketing campaigns.

    I agree that courts alone can’t bring about social change, but I do think that court rulings do have a significant impact. Yes, social change takes a long time, and it is sometimes through one’s growing into change, that moves people hearts and minds and acceptance of that which they don’t know, understand or find “different”. But sometimes, court rulings, by bringing about changes, can push that change along. I’m not suggesting that the judicial body make the rules — I don’t buy into that crap of the right about labeling any judge one disagrees with as an “activist judge” — but by judging what is fair according to constitutional principles, help us to see that our behavior founded on unfamiliarity, on fear, or some other emotional basis, is wrong and adjusts attitudes over time. It sounds sort of stupid to say that some people won’t find gay marriage right until they find that it is right through they’re own experience, but I think that is the case — by exposure, one learns that which seemed different is not so much. Maybe we haven’t come as far as we should have since Brown v Board of Education, but where would we be without it?

    I’ve gone on far too long for a comment, so I won’t even begin to write about my thoughts on whether governments should be sactioning marriage at all. Although married, I really don’t get what concern it is of the government’s. But, as long as the gov gives its official seal of approval, I don’t know how they can decide that it only applies to certain kinds of people.

  5. I do like the way you are arguing for balance and reasonableness here, Lily. I very much agree with you that the law is only half the battle, and that we tend to rely on it too much to regulate all that is unkind and unjust about human behaviour. It’s not as if the law has quite cracked the problem of crime, is it? I don’t know enough about this situation in the US to really comment on it. But I’ve just sent back an acceptance to my former PhD student to attend his wedding to his male partner in September, which we’re all looking forward to. Here’s hoping that one day, all choices, when they are loving and kind and community-enhancing will be accepted without second thought.

  6. I agree that things are changing. Even Oprah had a show with a positive take on gay marriage and her constituency is pretty middle America. The court upheld the marriages that have taken place so those people are not having their joy ripped away. That’s important. Hate is insidious but it can change. And I also believe that it is.

  7. Lilian, Like you I believe we’re capable of change — it’s the one step forward two steps back nature of change that’s so difficult!

    Marie, I am optimistic — I think it comes from living with children, and watching them grow and change.

    Litlove, That’s a wonderful formulation of the basic notion, which is that we should all be able to live in a world where “all choices, when they are loving and kind and community-enhancing will be accepted without second thought.”

    Dear Cam, Your post raises such an important point — which is how can it be that California’s citizens have agreed that our constitution can be so easily changed? It takes a simple majority to do so, which is foolish in the extreme. (It’s also important to note that the California constitution cannot take away rights guaranteed by the federal constitution, but that leaves a lot of room for ridiculous laws, which have increasingly made it difficult for the legislature to act in a fiscally responsible way.) The court notes this in its opinion. But it cannot remedy this problem — only the citizens can. And maybe they will. Stranger things have been known to happen in our Great State.

    Genie — I agree with you. I almost always vote no on the propositions, a vote that doesn’t feel particularly well-informed. That’s what legislators are for. I don’t want to decide how much money we should spend on our infrastructure — I want them to.

  8. On another site I frequent, where on-going discussion and an almost chat-room atmosphere hold sway, it’s been very interesting to watch consensus developing among the “Calis” there. Some are quite conservative, even adamantly so, while others are left-leaning populists or radical leftists.

    The point is that they’re coming together in anti-government-by-initiative feeling. Whatever their convictions re: same-sex marriage, economic issues or the 2nd amendment, I’m hearing more and more often that direct democracy isn’t going to solve the problems.

    I’m too far removed from California now to have anything specific or useful to offer. But I do know that things change, and sometimes we don’t realize how much they’ve changed until our horizon enlarges. Race relations are a perfect example. I won’t clutter your blog by expanding on that except to say that I grew up not seeing a black person until high school. After a rather naive few years in West Africa, I returned to the States to discover liberation theology and Black power movements had taken root. Shortly after, Steve Biko was killed while in detention, and events picked up steam.

    Today, race is still an issue, but it’s astonishing how much change has taken place. I attended a wedding not long ago in deep East Texas – the wedding of a young black man and a lovely white woman. Every member of both families was there, and the friends came, and a bi-racial couple topped the cake. Twenty years ago, who knew?

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