Submitted to a Candid World


After Proposition 8: Our Coalition, and Our Commitment to Gay Rights (UPDATED)
November 6, 2008, 6:28 am
Filed under: Author - ACG, Politics | Tags: , ,

Apparently, deception *is* a family value.

Not one day out, and this election already has a bittersweet tinge to it. Today, per a California ballot question entitled “Proposition 8,” the state will annul thousands of marriages, lawfully and lovingly entered into, merely to defray the squeamishness of a public still coming to terms with the ramifications of pluralism. It’s too bad – especially because Proposition Eight had two brothers – but especially now, we can’t let this defeat blunt our enthusiasm or fracture America’s new progressive coalition.

(Ahem… update: apparently, although this point is being litigated, Prop 8 will not invalidate extant marriages.)

In any fight for liberty, deception is the reactionary’s greatest weapon. Proposition 8 was no different. Anti-gay marriage groups – funded by Mormons and Moonies – ran a campaign of fear and deceit, threatening Californians with over-inflated horror stories of a “gay-ified” California, and quote-mining Barack Obama (above, right) to make it seem that he, too, supported a ban on gay marriage. He doesn’t, and he didn’t -

- but that won’t stop enemies of the nascent Obama administration from using Obama’s moderate-conservative stance on gay rights, and the latent prejudices of some of his constituents, to try to de-motivate victorious progressives and drive a wedge between President-Elect Obama and gay America. We can’t let that happen. Obama, a Democratic presidency, and a Democratic Senate are the best things to happen to gay America in a long time. Not only has #44 already steered the rhetoric on gay rights away from fear, and towards respect ((Recall his Chicago speech: “It’s the answer spoken by young and old, rich and poor, Democrat and Republican, black, white, Hispanic, Asian, Native American, gay, straight, disabled and not disabled. Americans who sent a message to the world that we have never been just a collection of individuals or a collection of red states and blue states. We are, and always will be, the United States of America.”)) but a receptive federal judiciary – the kind Obama will create – is the first step to a litigation strategy. Hint: the federal Constitution trumps California’s any day of the week.

Admittedly, for the next few years at least – even under a Democratic President – gay rights advocates will have to play a “long game.” Especially if the Republican Party veers right in response to its ‘08 implosion (as seems likely from ex-McCain supporters), when it comes to gay rights, neither America’s attitudes, nor America’s law, can be expected to turn on a dime. Mindful as I am of the “dream deferred,” not all change comes in a matter of days. Make no mistake, the passage of Prop 8 is a bitter defeat. But it might be the last – and Obama’s election is a major victory for a more tolerant America.

**UPDATED** with a Hitchiker’s Guide to the Gay Agenda

The far right loves to talk about the “gay agenda” as if it were a monumental, insidious force bent on subverting society. Think the Sith, but with guys holding hands. The truth is, there’s never been a “gay agenda” except liberty; one could just as easily speak of the “black agenda” in the early 1900s. But this, in shortened version, is a roadmap to what gay Americans and their straight allies (like me) should be fighting for:

  1. REFINE the discourse to drain the gay rights issue of homophobia and its culture wars context; couch marriage rigths in terms of respect and – dare we say it? – family values. President-Elect Obama has already started down this path (check!).
  2. REPEAL the Defense of Marriage Act. By subjecting marriages to geographical boundaries, DoMA works an intolerable hardship on legitimately married gay couples, while turning the Constitution’s vision of federal unity in on itself and essentially reading the Full Faith & Credit Clause out of the document. Luckily, DoMA is just a statute: Pres. + 57 Democratic Senators = potential repeal. Lacking a filibuster-proof majority, though, there’s no guarantee. But, DoMA is pretty plainly unconstitutional. With a federal bench willing to listen, it could, with just a little more handwringing, disappear.
  3. REFRAME sexuality as status, rather than conduct. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court, per Justice Kennedy, was at pains to not treat homosexuality as an immutable personal trait. While Lawrence was a major milestone for gay rights, by protecting intimate conduct (under the Due Process clause) rather than a person’s right to be free of discrimination based on sexual orientation (under the Equal Protection Clause), it left much to be desired. If the Court can be forced, instead, to recognize gay men and women as a “discrete and insular minority” under the Equal Protection Clause, United States v. Carolene Products Co., 304 U. S. 144, 153, n.4 (1938), states will be hard-pressed to discriminate against gay Americans on the basis of sexuality.
  4. REFOCUS the marriage issue on civil rights, rather than ecumenical status. No civil rights lawsuit will ever force a church to marry two men; the fight for “gay marriage” is just a fight for “state and federal civil benefits for same-sex couples.” Once it’s clear that the marriage right does not interfere with peoples’ religious beliefs, moderate Americans might start to let go of their fears.
  5. DEFINE marriage as mixed conduct and status. The act of marriage is, in some way, expressive – it’s a way you tell the world who you are, and what’s important to you. In that sense, marriage is kind of a “fundamental right” protected by the Due Process clause, see Loving v. Virginia, 338 U.S. 1 (1967). Defining marriage as a mixed conduct/status issue could make up any ground not covered by Step 3, and establish a firmer legal basis for securing same-sex marriage benefits.
  6. PROFIT. Isn’t that always the last step?


30 Comments so far
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Obama’s stance on gay marriage was one of the things I found most appealing about him. While appointing liberal judges is certainly a major priority for him, I think it’s fair to say that gay rights are pretty far down his priority list.

I was actually surprised this passed, but it’s interesting to note that all the anti-gay legislation up for vote on Tuesday passed, while every effort to limit abortion failed.

Perhaps the public is not as far along on gay rights as I thought. You’re right to suggest patience because Obama is not going to be pushing their agenda any time in the near future.

Comment by Progressive Conservative

In a conversation with a coworker regarding this topic yesterday I commented “Gay is the new black” he said “What?” – What I meant is that there were fears regarding the electability of Obama based on his color regardless of what voters were saying they would do…nobody would know what they did in the privacy of the voting booth until the votes were tallied…Even Californians are not as “liberal” in their voting as they verbally are on the streets with their friends and neighbors…who it appears over half the state do not approve of. Whether you agree or disagree with another, it is unfortunate that Americans continue with their dishonesty toward each other. I have a lot more respect for an honest person who I am in total disagreement with then someone who just says what they think I want hear regardless of what they truly believe. Regardless of your stand on this issue it is a pity that California appears to be populated with so many liars…or is it actors?

Comment by Cool Mom

I think that’s unfortunately true. California could be witnessing a gay Bradley Effect…

Comment by Ames

Maybe the reason there IS a ‘Bradley effect’ is because people feel pressured by pop culture to feel one way while their sensibilities tell them something else.

Comment by Mike (PC)

Peer pressure to be open-minded? Heaven forfend!

Comment by Ames

Terrific statement; much appreciated from one half of a recently-wed same sex couple.

I would point out that your statement that “today…the state will annul thousands of marriages” is not accurate.

While this *could* be the end result of already-in-motion legal procedings, and while this is the intent and desired outcome of the prop 8 protagonists, AG Jerry Brown has stated that retroactivity (annulment) is legally highly suspect, and he would argue against it.

Picked nit aside, again, terrific post.

Comment by diembe

One man’s ‘open-minded’ is another man’s notion of cultural norms weakening.

Just because you’re fine with gay marriage doesn’t mean all Americans are and it doesn’t mean their biggoted because they see it as problematic.

Comment by Mike (PC)

“cultural norms weakening” … why is change always packaged as a threat?

Comment by didionsmommy

I could ask liberals why they always think change is a good thing?

Comment by Mike (PC)

nice non-answer.

expansion of equal protection is always a good thing.

Comment by didionsmommy

Thanks Diembe! I really appreciate the correction – I’ll add it in – and congratulations on your marriage!

DM & PC – I’ll agree that not all change is good, and expanding equal protection is generally good, but I think we’ll all recognize there’s a point where equal protection becomes protecting something that’s inequal – and thus, is undesirable. We disagree where that line is. I put it after gay marriage and before polygamy.

Comment by Ames

DM, You like change because it makes for a nice bumpersticker. I like change when it is necessary. Change simply for the sake of change is reckless.

And I’m not sure what protections would have been offered to gays if Prop 8 was struck down?

Ames, I’m curious as to why you draw the line between gay marriage and polygamy? I’m actually more inclined to support the latter.

Comment by Mike (PC)

p.c., once again, your characterization of me is spot on.

***
ames, your statement implies a spectrum, that gay marriage is one step away from polygamy. the way polygamy is practiced in this country over the last several decades, certainly, is detrimental to the women and children who find themselves in these polygamous splinter sects … incest, statutory rape, forced marriage, etc.

to me, polygamy (more accurately polygyny) as we have seen over the years is on a completely different plane from monogamous hetero or homosexual unions, between two consenting adults.

Comment by didionsmommy

i want to clarify, though, that if consenting adults want to enter into a polygamous arrangement, and the contractual arrangement that exists between one man and one woman now extends equally to all parties involved, then i don’t have a problem with polygamy … in theory.

Comment by didionsmommy

DM, there are plenty of healthy and functioning polygamist families in the US. You hear about the bad ones and characterize them all. What if we did the same for the high % of dysfunctional homosexual marriages and pointed to that as proof that it was beneath hetero unions?

Comment by Mike (PC)

Mike, there are still many instances where a heterosexual marriage has: child abuse, child neglect, spousal abuse, adultery, etc. And most common of all, divorce. And until we have allowed many homosexuals to marry over many years, we can hardly make any comparisons. But “traditional” marriage doesn’t even look so good on it’s own.

I agree with didionsmommy on polygamy. And that’s because for the purpose of these discussions I view (secular) marriage as merely a contract between individuals. There’s nothing inherent in that legal contract that need specify gender, nor anything inherent that prevents it from being amongst three or more parties.

Obvisously, there are aspects of religious marriage that prevent these inerpretations, but that’s not what we’re talking about. It’s the word “marriage” that obfuscates this debate, because while we’re talking about secular marriage, many still take it to mean the other. This debate is not about forcing the Catholic church or Baptist church or any other to grant and recognize homosexual marriages. This is about having the state expand its definition of marriage to confer those benefits to homosexual couples in a way that is equal without being separate.

Comment by Kris

If gay marriage becomes legal in states, I think it’s inevitable that polygamy follows. As I said, i’m much more inclined to accept polygamy over gay marriage…but I see both as inevitable.

Comment by Mike (PC)

Mike – it would certainly follow that if an individual were bisexual that they would have the right to a spouse of each gender. My earlier point was regarding honesty. I am tired of “PC” and hope the current children have a backlash…I have great memories of Halloween and Valentines day events in school and my kids have “Fall Festivals” and “Friendship Day” and parents were fearful to stand their ground and express their opinions openly. During my adulthood there has become a smugness about being in the know and any opposition was looked down upon. The true test of this next administration is if they really are tolerant or just want to push their agenda down the throats of the American people. Fasten your seatbelts, it’s going to be a bumpy ride!

Comment by Cool Mom

DM totally pwned me on the polygamy point. She’s right; it is on a different plane, that’s part of the reason I distrust the slippery slope.

And CoolMom, I’m also hoping Obama plays it up the middle. I think that’s the best way for him to do it. He’s convinced me that he is a class act; I hope that he actually is.

Comment by Ames

Candid, you’re just wrong.

Obama DOES oppose gay marriage. That’s why he could be >sadly< successfully quote-mined by Yes on 8.

That’s why I blogged that Obama supported Prop. 8.

In the Veep debate, Biden said both he and Obama opposed gay marriage in front of 100 million TV viewers. Obama made similar statements back already in the Democratic primaries.

You can take him off the pedestal.

And, yes, with the “obama” symbol as your URL icon, I’m rightly skeptical about the pedestal.

Your six point plan on this issue is great; just don’t expect Obama to be in the vanguard.

Comment by SocraticGadfly

I always jump on this subject. Obama is taking the steps necessary for gay rights in my opinion that make him more electable for the broader electorate. I think he’s one of the most progressive on gay rights of any recent electable (and now elected) candidate.

And in his own words concerning prop 8,

“Illinois senator said he supports extending “fully equal rights and benefits to same-sex couples under both state and federal law.”

“And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states,” Obama wrote. ”

And I agree with PC in that it may not be his highest priority, but where I think he will be different is he will continue to vocally oppose any gay right discriminating legislation like Prop 8, repeal don’t ask don’t tell, and continue supporting anti-discrimination legislation.

And these are the small changes we can make starting now to continue the struggle for gay rights.

Comment by Oneiroi

Oneiroi, when you say, “…the struggle for gay rights” I think the rights you can expect Obama to support are legal protections for couples i.e. medical decisions and a couple other items that come up. What you will NOT see is a push for joint tax filing, marriage, civil unions or much else. And I don’t think this is because Obama is afraid of the political fallout. I think he genuinely is not that concerned with the gay agenda and probably considers it a distraction.

I think gays are going to be one of the first groups that are going to be disappointed by Obama. I don’t blame that on him. I blame that on superimposed expectations that do not reflect the reality of his position.

Comment by Mike (PC)

Mike, and Socratic: thanks for weighing in, but remember, the key to understanding political discourse is to look past the talk. As one of my professors said, “watch the hands” – Obama needn’t pull the trigger. He just needs to put the right justices in a position to do so.

Comment by Ames

That’s my point Ames…I don’t think he even cares if the justices plan on helping out. Gays may get what they want but it will not through any concern of Obama. It will just be a side-effect of nominating liberal justices.

Comment by Mike (PC)

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