Prop. 8 and the Future

Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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50 Responses

  1. North says:

    Agreed, we’re kindof getting out of the stage where the courts should be used so much. With as much support as we have now gays rights advocates should move heavily into making their cases in the legislatures.Report

  2. Simon K says:

    I agree Jason I’d much prefer to see prop 8 overturned at the ballot box. Although I think there’s a decent case that it is in fact unconstitutional, and the lawyers pursuing it are doing a good job, I’d have preferred if they hadn’t started this yet. The small number of gay couples who married in California while it was allowed are the best campaign possible for overturning the law.Report

    • Jaybird in reply to Simon K says:

      @Simon K, the problem with the “unconstitutional” argument is that Prop 8 was the (inevitable, it seems to me) Constitutional Amendment that passed after Prop 22 (merely a state law) passed and was later found unconstitutional.Report

      • Simon K in reply to Jaybird says:

        @Jaybird, True, but I don’t think the anti-marriage folks’ support is actually strong enough to pass a federal amendment. Their position polls better, but my experience has been that their supporters are pretty easily swayed and might well be swayed by the defacing of the federal constition for debatable ends, just as they’re also pretty easily swayed by actually realising they know gay couples.Report

        • Jaybird in reply to Simon K says:

          @Simon K, I worry that we are in the last days of it being possible to pass a federal amendment as part of a backlash to a supreme court ruling.

          That is to say, I can’t think of 13 states that would *NOT* ratify such an Amendment… and half of those wouldn’t do it for “conservative” reasons.Report

  3. Jaybird says:

    It saddens me because it strikes me that there are a number of arguments for gay marriage that would have worked and would have resulted in civil protections because the vote would have been different.

    But then I remember that those arguments are libertarian ones and I’m probably over-selling them to myself and they’d probably have crashed/burned worse had they been used…Report

    • Simon K in reply to Jaybird says:

      @Jaybird, In the case of prop 8, running any kind of decent campaign would have worked. You can’t win a campaign for gay marriage by pretending gay people don’t exist.Report

      • Jaybird in reply to Simon K says:

        @Simon K, well, I’m unfamiliar with the “official” campaign, but the unofficial campaign seemed to be something of the form “not only is it none of your business if two guys get married, we, as a society, have a responsibility to make sure that they can and if you don’t agree, you’re just like Bull Connor, vote no on 8”.

        It seems to me that that is an excellent way to piss undecideds off.Report

        • Simon K in reply to Jaybird says:

          @Jaybird, Quite. Add to that the deliberate decision by the official campaign to run TV which didn’t have any gay couples in them, and you’ve got a total disaster – insult your audience, hide your best assets. And even with that it was close.Report

  4. “Trying to force the issue on the entire country doesn’t look like common sense. It looks like desperation.”

    I agree. Unfortunately there is a certain segment of SSM supporters (and I have come to believe it’s the supporters more than gays themselves who are pushing this) who can’t bear the thought of gay mariage throughout the Northeast within 10 years and gays in the South and midwest having to wait 20-30 years. I tend to hear things like, “Force gay marriage on those states and they will get used to it, just like they did desegregation.”Report

  5. gregiank says:

    “Trying to force the issue on the entire country doesn’t look like common sense. It looks like desperation.” So therefore trying to incorporate the 2nd amendment was wrong. Why force the entire country to have a level of gun ownership they don’t want shoved down their throats? Why was Kelo wrong, why force the entire country to have property rights they don’t want in their area?

    My point is not to reopen those debates. but if someone thinks something is a right then why shouldn’t they try to have it accepted as a right as opposed to a ballot initiative. If something is a right , then why should only people in some states have it?Report

    • Jason Kuznicki in reply to gregiank says:


      First, I expect the backlash from Heller and related cases to be minimal. I also think that these cases are on a much sounder legal footing than any purported federal right to same-sex marriage. Although the latter does have at least a plausible case to it, it’s not spelled out in plain English and well-attested historically like the right to bear arms. These are meaningful differences.

      Second, Kelo was a deeply unpopular decision. I think if there had been a popular vote on it, things would have turned out very differently. “My” side in Kelo wasn’t doing anything counter-majoritarian at all.

      And third, experience shows that people really do get used to same-sex marriages being in existence around them. After that point, the issue cools down a lot. If we are ever to convince a majority with a practical demonstration — and at least minimize the charge of minority rule — this seems the way to do it.Report

      • gregiank in reply to Jason Kuznicki says:

        @Jason Kuznicki, I suspect most people will get used to SSM regardless of how it comes about. To the people who will not get used to it…. well….they will just always think its wrong no matter how it passed.Report

        • Simon K in reply to gregiank says:

          @gregiank, Sadly I think the history of abortion law in the US contradicts your argument. Different European countries have different levels of legality of abortion, but nowhere does it have the extreme controversy and partisanship around it that it does in the US. Its an emotive issue, but its also quite clear to all concerned where populace stands and how to change their minds. Roe put a stop to the same process of liberalisation just as it was happening in most of the US (including the South, I should stress). The result has left a large group of people unreconciled to the status quo and with a convenient additional casus belli in (IMHO misguided) constitutional literalism. The result has politicised and undermined the court, and become a shibboleth in right-wing politics in the US to an extent out of all proportion with either popular sentiment or political impact. Having such rancour and partisanship around an issue that should be treated with modertation and respect has been deeply corrosive.

          You can see that certain elements on the right are now also starting to pick up on Lawrence v Texas and complain about that. I think this is blatant political baloney – I find it hard to believe anyone really cares about reinstating unenforced (and largely unenforceable) laws against purely private conduct – but there’s an undeniable sentiment on the right against the court’s privacy jurisprudence in general. Adding fuel to this fire is not even remotely desirable in my view. Some people will remain unreconciled to abortion, sodomy or gay marriage regardless of how they’re legalized, but there’s a significant number of people who can be swayed against it if its legalized by judges who wouldn’t if it were legalized by the state legislature.Report

          • gregiank in reply to Simon K says:

            @Simon K, We’ll have to agree to disagree. I do not think Roe prevented a liberalization of views on abortion. The biggest difference between us and Europe is a large Christian conservative movement who remain completely opposed to abortion. Their is great tendency among many people to always assume they are in the majority. I’ve heard to many people on multiple sides of debates who are sure they are in the majority. Anti-abortion folks, who strongly trend conservative, seem convinced they are the “true” Americans and they are the “silent majority.” Roe or not, that is not going to change. Compare that to feelings about segregation which was strongly opposed by many people. Open racism is much less publicly acceptable now. People have gotten used to it, or at least learned not to scream “nigger” in public.Report

            • Simon K in reply to gregiank says:

              @gregiank, Many European countries have large religious conservative movements and stricter laws on abortion than the US, although I think at present only Ireland retains a blanket ban. The trend is towards greater liberalization, but different countries have proceded at very different paces. The US is different in the alienation between religious conservatives and secular liberals, not in their existence or degree of power.

              I agree with you that people usually perceive themselves to be in the majority in their views, but I don’t read the implications the same way. There’s a good reason for the perceptions, which is that by and large they are in the majority amongst the people they talk to. The extreme physical size of the US makes the effect greater than it is in Europe. Its quite possible to grow up in the Bay Area and never meet a conservative (libertarians, yes, conservatives, no). I’m sure its similarly possible to grow up in rural West Virginia and never meet an actual liberal. Its a whole different deal when you have to drive 200 miles and make a deliberate effort to actually meet someone on The Other Side. That just doesn’t happen in Europe – driving 200 miles will usually put you in another country, you need to go a lot less far to find someone who disagrees with your political priors. This matters because it creates the sense of alienation mentioned above – when the national political process goes in a direction neither you nor anyone you’ve ever met can even get their heads around you naturally feel alienated. Doubly so when the decisions are taken by an institution that is deliberately unaccountable, remote and elitist.Report

          • @Simon K, I agree with your statements Simon. Opposition to abortion was localized from state to state prior to Roe. The Supreme Court turned it into a national issue. Abortion only became a major political issue after Roe.Report

  6. Bob says:

    Obviously, I’m no lawyer. But I wonder if Romer v. Evans might offer some glimmer hope that SCOTUS could rule in favor of the plaintiffs if the Prop 8 case gets to them.

    • Simon K in reply to Bob says:

      @Bob, They could, but there are precendents both ways – if the court applies strict scrutiny prop 8 clearly fails, but homosexuals might not qualify as a suspect class. The question is then whether there’s a legitimate state interest. That’s what most of the lower court action has been around.Report

      • Dave in reply to Simon K says:

        @Simon K,

        Same sex marriage bans won’t withstand intermediate scrutiny. The Iowa Supreme Court didn’t even go to strict scrutiny to strike down the ban in its state.Report

        • @Dave, “Same sex marriage bans won’t withstand intermediate scrutiny.”

          I agree. If you look at Loving and also the Civil Rights Act these were rulings that overturned laws designed specifically to be discrimatory. That is also what gay marriage bans are. I find them all to be unconstitutional. Note though that this doesn’t mean I find a civil right to gay marriage. I just believe that since one never existed a law designed to prevent it is unjust.Report

          • @Mike at The Big Stick,

            If gay marriage bans are overturned, wouldn’t the end result be a civil right to marriage for gay couples? They would have access to the same legal benefits and protections.

            Is there a difference that I’m missing here?Report

            • @Dave, Well I think that’s the key question. Loving found a civil right to marriage did exist, but it was a narrow ruling which I don’t belive left room for gay marriage. I would say that maybe the gay marriage bans are unconstitutional in the spirit of the law but not in the letter.Report

            • Simon K in reply to Dave says:

              @Dave, Well its an interest point. Could the court find that its unconstitutional to ban gay marriage, but also find that the state isn’t obliged to recognise gay marriages? Wouldn’t that force the issue out of constitutional law and back to the legislatures? That might be good thing.Report

            • @Simon K, That would be ideal. In my opinion, specifically banning gays from marrying was a bad idea because it seemed to create a class of people and then turned right around and specifically excluded them.Report

            • Jason Kuznicki in reply to Dave says:

              @Mike at The Big Stick ,

              My understanding is that banning same-sex marriage doesn’t actually do what you suggest. It simply limits marriage to one man and one woman. Either of these, of course, may be a homosexual.

              I tend to find the strongest argument for same-sex marriage is that prohibiting it constitutes a regime of gender discrimination, in which I am permitted to marry only people of one gender. If I were only allowed to hire women, I (or the law’s authors) would have some ‘splainin to do.Report

            • Dave in reply to Dave says:


              Could the court find that its unconstitutional to ban gay marriage, but also find that the state isn’t obliged to recognise gay marriages? Wouldn’t that force the issue out of constitutional law and back to the legislatures? That might be good thing.

              If states laws banning same sex marriage are found unconstitutional, then the law has to recognize them so I’m a bit confused as to what you’re thinking. It will have to go back to the legislatures so the legislatures craft the appropriate statutes per the Court’s guidance but the so-called “democratic deliberation” (read: 50% plus 1 decides whose rights are what) is over.

              I know that this makes people uncomfortable, but it is a constitutional tradition, as Justice Jackson wrote in the landmark opinion West Virginia Board of Education v Barnette:

              “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”Report

            • @Jason Kuznicki , If gay mariage bans simply limit marriage to one man, one woman, doesn’t that seem redundant to current law?Report

            • Jason Kuznicki in reply to Dave says:

              @Mike at The Big Stick ,

              The bans aren’t redundant for two reasons. First, I understand that at least some marriage statutes had been written without gendered language, leaving the question open.

              Second, while other statutes were indeed written with gendered language, strong equal rights amendments for gender in various state constitutions called the gendered language into question, and courts began rejecting it. This brought on constitutional amendments carving out exceptions to the state constitutions’ equal rights amendments. (By then, a statute wouldn’t have been good enough, because it, too, would have been rejected by a later court.)Report

            • Simon K in reply to Dave says:

              @Dave, Its not obvious to me that a state has to recognise marriages merely because its can’t amend its constitution to prevent them. Recognising a marriage isn’t the recognition of a bare fact – creating a marriage requires the participation of the state. It might be the case that you can’t amend the constitution to prevent gay marriages, but that the legislature is not obliged by federal law to provide for creating such marriages. I don’t know enough to know whether this position is legally possible, but it seems to be logically coherent.Report

    • Dave in reply to Bob says:


      Romer is by far the best precedent.Report

      • Bob in reply to Dave says:

        @Dave, thanks. I thought it had something instructive to say. But, I’m no….Report

        • Dave in reply to Bob says:


          Both Romer and Lawrence are instructive not only in what was decided, but how the cases were decided.

          As far as what was decided, both cases struck down laws where the primary motivation (if not the sole motivation) was animus towards a specific group of individuals. Amendment 2 targeted gays and the Texas anti-sodomy statute only targeted gays (even if you believe that laws against sodomy are constitutional, this law had a bit of an equal protection problem).

          What I like about the manner in which those cases were decided. The court didn’t even need to delve into fundamental rights analysis to demonstrate that the state governments overstepped their bounds.

          As the court did not need to “discover” a right to same sex sodomy to rule that the State of Texas overstepped its bounds by targeting a specific class of individuals, I don’t see why the same types of arguments can be made against bans on either same sex marriages, domestic partnerships or civil unions. Granted, an equal protection argument can carry the day assuming gays are considered suspect class under the discrete and insular minorities language of Footnote Four, but it almost seems as if there wouldn’t be a need to take it that far.

          Still, there will be political fallout, but I can’t see how the political fallout would be any greater if Prop 8 is overturned than what happened as a result of the Goodridge ruling in MA. Attempts for a federal constitutional amendment were made and they failed. I haven’t looked at poll numbers, but my suspicion is that you had more resistance to same sex marriage in 2003-2004 than today.Report

          • Jaybird in reply to Dave says:

            @Dave, I haven’t looked at poll numbers, but my suspicion is that you had more resistance to same sex marriage in 2003-2004 than today.

            Pessimist that I am, I suspect that this is due, in part, to the laws and/or State Constitutional Amendments passed. I worry that if the Supreme Court gives a 5-4 decision in favor of equality, it’ll result in a resurgence of resistance that will last juuuust long enough to get a Constitutional Amendment passed.Report

            • ThatPirateGuy in reply to Jaybird says:


              I tend to think it would have the opposite effect as it would be very good for non-republicans as the next couple of decades pass. People of my generation simply don’t have it out for gay people like those older than late late twenties.

              The more that conservatives try to make this an issue the more elections they will lose(once we get past elections with 10% unemployment it always hurts to be the party in power when that is going on.) A 5-4 decision that fires up the conservative base will end up firing up everyone else to vote against them, demographics are not on the side of the republicans.Report

            • Jaybird in reply to Jaybird says:

              @ThatPirateGuy, I hope you’re right.

              My suspicions though are the following:

              1) 2004 wasn’t *THAT* long ago, all things considered.
              2) When Loving v. Virginia passed, Virginia was one of the last states out of 50 to still have such an archaic law on the books and enforced (AT THE POINT OF A GUN)… the gay marriage ban laws/amendments passed in every state where they were put on the books (excepting, surprisingly, Arizona). When legalizing gay marriage has been put up to the population, it has *NEVER* passed. Like, not even in Maine.

              Now… if this were 2024? Maybe I’d agree. 2044? Definitely.

              Now? I’m pessimistic.Report

            • ThatPirateGuy in reply to Jaybird says:


              Like I said 2010 is going to be a bad year to have a D next to your name on a ballot.

              2012 is too far away for me to tell and the demographics won’t have had enough time. 2016, 2020 should be good years for a D next to your name especially if the right keeps the anti-illegal immigration anti-gay stuff up.Report

            • Jaybird in reply to Jaybird says:

              @ThatPirateGuy, a question I should probably have answered:

              When will the SCotUS be looking at the gay marriage question? Has cert been granted to any particular case? Have they actually sent down a request to a much lower court saying “we’ll field this one, thanks”?

              If the lower courts can kick this around for 14ish more years before it gets kicked upstairs…Report

            • @Jaybird, Perry v. Schwarzenegger will probably not be decided at the district court level for several months. After that, it will have to work its way through a panel of the Ninth Circuit, which will take at least a year, and then the Ninth Circuit might choose to take it in an en banc proceeding, which would take another year. Only after that would it be eligible for certiorari. So the earliest it might be briefed and argued before SCOTUS would be 2012 or 2013; the latest would be around 2015.Report

            • Jaybird in reply to Jaybird says:

              @Transplanted Lawyer, Thank you!

              2012-2015… that’s actually pretty close to now (all things considered).

              I suspect (though I don’t know):

              The Republicans will do well in the House come 2010 and 2012. They will do well in the Senate both times too… if the Supreme Court hears the case, they’re likely to find in favor of gay marriage 5-4, maybe 6-3.

              *IF* this does not result in a Constitutional Convention (which I think it will), it’ll give the Republicans their next “abortion”… and they’ll keep the White House in a headlock for another couple of decades.Report

            • North in reply to Jaybird says:

              @Jaybird, I don’t know Jay… I don’t feel that gay thumping has the longevity that pro-life positions have. Pro-life positions are resilient and sometimes cyclically resurgent among the young (especially as long as flat out banning of abortion is out of the picture). Anti-gay attitudes, on the other hand, have been reliably declining in the young. I’ve heard a few conservatives claim that as people get older they get less gay friendly but I haven’t read anything concrete enough to make me think that the generations in the ovens now will become anywhere near as uncomfortable with gays as their elders are now.

              Long story short; in 5 years there a lot of vehemently anti-gay old people are going to shuffle off this mortal coil and there are not going to be a lot of vehemently anti-gay young people to replace them.Report

  7. Alan Scott says:

    Capeheart might understand people and their views, but I don’t think he understands the Courts–both in motivation and capability.

    First, suggesting that the unanimous Wisconsin decision was “Anti-Gay” doesn’t reflect the circumstances of that case very well–The pro-gay side didn’t have a legal foot to stand on in this one, and even a pro-gay state court isn’t very likely to strike down a constitutional amendment. (The California supreme court voted 6-1 to uphold proposition 8, a constitutional amendment that had just overruled their 4-3 ruling in favor of gay marriage).

    Next, there’s a lot of room between the next Bowers v. Hardwick and the next Roe v. Wade. For example, an anti-SSM ruling might be so narrowly tailored as to have little effect on future challenges to marriage bans–especially since narrowly tailored rulings are fashionable among the conservative justices on the Roberts court. It’s entirely possible that the circumstances of court rulings will result in more of those ho-hum state-level experiments as the case winds its way through the court–at the appeals court level, a ruling would only apply to the states in the ninth circuit (or depending on the ruling, possibly just California)–and there’s nothing obligating SCOTUS to take up the case right away (typically, they only take up cases when there’s a disagreement between appellate courts on some issue, and I believe this will be the first time a circuit court rules on the issue, so no split).

    Even given a big SCOTUS ruling that says all states must implement gay marriage right away, a federal constitutional amendment takes a lot of time. And, as you point out, states that enact gay marriage tend to stop caring about the issue.Report

  8. Rufus says:

    I still can’t marry my box turtle?…Report

  9. If there were a reasonable prospect for getting a unanimous Court to say that same-sex marriage is a Constitutional right under the Fourteenth Amendment, I’d feel better about the Perry v. Schwarzenegger case. The fact that Brown v. Board of Education was unanimous made people sit up and take notice because Justices of a number of different views came together and said with one voice, “Segregation must end.”

    Unfortunately, it seems very clear that given the current composition of the Court, we’d be looking at a 5-4 or 6-3 split in favor of SSM. That does not carry nearly the same kind of political weight — instead it carries a message like Roe v. Wade or Bush v. Gore that “We are weighing in on the issue simply because we can, and you can vote for Presidents who promise to change our votes in the future,” rather than “We are pronouncing the difference between an immutable right and a great moral wrong.”Report

    • @Transplanted Lawyer,

      I tend to look at the ruling in the Brown decision as sparking a lot of backlash from predictable sources. It didn’t seem as if the fact that the decision was unanimous was particularly relevant.

      I don’t see the most ardent opponents of same-sex marriage giving up the fight if the Supreme Court rules animously to strike down SSM bans.

      Then again, I do see where you are coming from. If it’s a 5-4 vote, it only takes one justice to reverse course, making the stakes of every judicial confirmation to the Supreme Court that much greater.Report