Prop 8 -- the day after

On November 4th Proposition 8 won and for the time being same-sex marriage is no longer an option in California. Voters in Florida and Arizona passed similar state constitutional anti-gay marriage bans, signaling that sex and gender-based discrimination remains the major national culture war hot-button issue.

Another California ballot initiative, Proposition 2, was for the humane treatment of farm animals. It won with 63.3% of the vote – nearly two full points more than Obama’s margin of victory in the California popular vote. By contrast, only 52.2% California voters voted against same-sex marriage. It was a closest margin of any of the twelve California ballot initiatives. Sadly, more people seem inclined to accord rights to animals than to fellow human beings.

Timing is everything.

312 years after the end of the Thirty Years’ War, a Catholic was elected president in Protestant America. Forty-eight years later, we look back on that election and wonder what the big deal. But John Kennedy’s religion was a major issue in the 1960 election. I remember. I was eleven years old and I canvassed my neighborhood for Kennedy.

Try to imagine any attempt ten years ago to limit factory farms and afford some measure of protection against cruelty to animals we eat – it wasn’t gonna happen.

Somehow, sex-based prejudice is harder to end. Why? Probably because of religion. Christian, Jewish and Muslim religious leaders perceived same-sex marriage as an existential threat and banded together to kill it.

The Religious Right got away with lying to Californians (and Arizonans and Floridians) about same-sex marriage. I’ve heard telling that Prop 8 proponents were calling and telling same-sex marriage supporters that a vote for Prop 8 was a vote for same-sex marriage – just the opposite of the initiative’s clear language. At the same time, California voters rejected the McCain/Palin campaign’s massive lies about Obama and the agribusiness lies.

Once upon a time it seems government limited the role of religion in the public sphere. That seems to be over. At least one U.S. Supreme Court justice has declared America to be a Christian nation. Tax-exempt money from religious groups, notably the Knights of Columbus and the Mormon Church, flooded California airwaves with the most outrageous lies to fuel anti-gay hatred to ban civil sector marriages they oppose on religious grounds -- a clear violation of the separation of church and state.

But the same-sex marriage issue isn’t over in California.

How many kids think “democracy” means that a bare majority has the right to dictate to the 49% minority? How many adults? George W. Bush and Dick Cheney do. Barack Obama says he does not.

One of the purposes of any constitution in a democracy is to protect the rights of minorities from the tyranny of the majority. Yet Prop 8 would change the California constitution to allow a bare 50+ percent of the vote to deprive gays and lesbians their right to marry whomever they choose.

The California Supreme Court and the U.S. Supreme Court both recognize marriage to be a fundamental right. Therefore, any attempt to deprive anyone of the right to marry anyone of their choosing is a major big deal. It’s not the kind of thing any society would allow a bare 50+ percentage of voters to do to the other 49%. Therefore, in just about every state and the Federal constitution, it usually takes more than a bare majority, usually a 2/3 vote somewhere along the line, usually in the legislature or a constitutional convention.

The California constitution speaks to two manners of constitutional changes – amendments and revisions. Amendments are for minor matters while revisions are for major changes. Taking away someone’s right to marry someone of their choosing is a major change to basic rights and therefore would not be properly by amendment but rather a revision. The procedure is set out in California Constitution  Article 18. The language is anything but straightforward but cases interpret it to require a 2/3 legislative vote to get a measure before the voters who can then pass it by a simple majority vote. Submitting a major change proposal to the voters without a prior ok from both legislative houses is not allowed but that’s what happened.

Prop 8 was put to the voters as an amendment in a simple majority vote without legislative review and 2/3 approval. The day after the election several groups and cities filed for California Supreme Court review to void the result.

Beyond that, the evidence is mounting that Prop 8 proponents relied principally on fraud to make their case. They alleged that same-sex marriage would impinge on religious freedoms, forcing children to learn about homosexuality and accept a homosexual lifestyle.

Lying didn’t work last night for McCain/Palin or for the big agribusiness conglomerates but it did for the Religious Right. And they succeeded in injecting religious considerations into the public sphere. Thus, they were able to bypass the California Supreme Court’s May 2008 ruling that overturned the 2000 California Prop 22 initiative that enacted a law banning same-sex marriage, in part on separation of church and state grounds.

I suppose if I were the Religious Right I would have done the same. Time was not on their side.

Prop 22 was supported by 61% of Californians. Eight years later and that number dropped to 52% and polls were telling the Religious Right that the trend was toward outright majority acceptance of same-sex marriage in coming years as the electorate skewed younger, so 2008 was their decision time. The prospect of an Obama presidential bully pulpit probably fueled their decision as well.

Hopefully, a court challenge will reverse last night’s Prop 8 win and the next anti-gay measure to curtail same-sex marriage will lose decisively, no matter what the deciding forum may be.

Beyond that, one hopes the Obama era will hasten a shift in attitudes about sex-based discrimination, and not just among the young. The first battleground issue may be a fully gender-inclusive ENDA in the next Congressional session.

In September 2007 Barney Frank and Nancy Pelosi threw us under the bus. Their given reason was the lack of votes among Democrats, especially the newly-elected “blue dog” (read: conservative) House members.

A lot has happened in the year since then.

Rahm Emanuel masterminded the 2006 Democratic takeover of the House of Representatives by engineering those thirty “blue dog” Democrats' elections in nominally Republican districts. Pelosi/Frank’s excuse was that these people were not transgender friendly. I never saw any report that anyone ever lobbied these people no one has ever explained what if anything our leadership did to educate them. Instead, we’ve been asked to accept on faith that they did.

I’m from Missouri.

In the year since the ENDA debacle a new scientific study from Australia reports persuasive evidence of a genetic basis for transsexuality. Another issued from UCLA, where Prof. Eric Vilain has been reporting this for years. The press increasingly reports positively on transgender issues, particularly regarding tg-identified children, while our enemies are losing traction as they hew to the same tired old arguments based on slanted psychology and religious prejudice. We won a major battle in Montgomery County, Maryland for a trans-inclusive ordinance and fended-off a similar challenge in Gainesville, Florida.

Emanuel has just accepted the post of Obama’s chief-of-staff. He now has seventeen additional Democrats on top of the majority we got in 2006 and at least fifty-six Democratic senators.

Timing is still everything, and now is our time.