For the democratic process…
Let me start out by saying that had I been a California voter in 2008, I would’ve voted against Prop 8. Period. Easy choice. As a self-described traditionalist, I support same-sex marriage because I support marriage as a social stabilizer (divorce might be another story, whether same-sex or heterosexual). But as a person who is psychologically wired to be susceptible to arguments against change in general, I can’t automatically dismiss opponents of same-sex marriage as bigoted or ignorant. Actually, I’m pretty sensitive to their concerns, even though I think they’re scapegoating the wrong people in their (often correct) fears about cultural degradation.
But while I agree with a great deal of Jason’s points on the weak defense of traditional marriage (particularly, as he points out, on the near-laughable argument about “inferior” parenting and the logical conclusions that argument would lead to), I can’t entirely agree with his casual dismissal of the argument that the ruling interferes with the democratic process. To repeat the quote of the defense:
Today’s ruling is clearly a disappointment. The judge’s invalidation of the votes of over seven million Californians violates binding legal precedent and short-circuits the democratic process…
It is disturbing that the trial court, in order to strike down Prop 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop 8.
In Jason’s analysis, “unless you’re prepared to say that no referendum can ever be overturned by a judge, you’ll need to offer more than that.” Well… not really. While acknowledging that the United States has never been a “pure” democracy and that there are certainly times throughout our history that a minority right must be considered ahead of the majority will, I’d say that the fact that a judge overturned a democratic vote is at the very least a pretty good argument and something that shouldn’t be taken lightly. Conceding that there are very occasional reasons for a referendum to be overturned is not the same as saying that any referendum can be overturned without concern to effect on the democratic process. Whether or not this meets that standard is debatable, but certainly the fact that a majority of Californians supported Prop 8 is not irrelevant to the debate.
In fact, my major concern about this is spelled out in Jason’s follow-up post, in which he speculates that Perry “may well show the limits of what you can achieve in the American political system when all you have are slogans and intuition.” It’s not an uncommon ritual for those who follow politics/government/policy to roll their eyes and shake their heads at the folly of the uninformed voter, those who pick a candidate based on the “drink a beer with” factor, or those who supported invading Iraq to avenge 9/11. But this argument has less to do with the balance between minority rights and majority will than it does the more general lack of trust in the ability of voters to process information and reach legitimate conclusions. Unless we are willing to invalidate democratic decisions based on perceived voter ignorance, the merit of the respective arguments should not be weighed in court. The only issue should be whether or not the referendum infringes on the rights and liberties of a given population – in this case, homosexuals – and whether the only available remedy is a judge’s reversal of the vote.
Finally, except for the immediacy of the victory, there was no need to win this in court. The demographics on age and support of same sex marriage are unmistakable. This could’ve – would’ve – been overturned democratically very very soon. Maybe it’s easier for me as a heterosexual (and non-California resident anyway) to throw up my hands and say, “eh, we’ll get ‘em next time.” After all, I have the legal right to marry. But I’m not suggesting complacency. I’m suggesting organizing, campaigning, educating, actually thinking through the reasons a majority supported the proposition, talking with opponents, and addressing that vote as wrong-but-legitimate rather than hateful. Victory might not have been as swift or as cheap that way, but the precedent it would’ve set would have, in my opinion, been worth it.
[as a sidenote, on this particular vote, democratic does not equal fair; clearly, for all practical purposes, the outcomes of these initiatives are – I won’t say bought – but influenced by inflows of money. But reforming that reality is a topic for another day.]