Call in Gay: Proposition 8

On November 4, 2008, California passed Proposition 8 by a margin of 52.3%, or roughly 600,000 votes. After years of litigation, kick-started when the Mayor of San Francisco began handing out marriage licenses to same-sex couples in 2004, the Californian Supreme Court held in May 2008 that previous changes to marriage laws (through 2000’s Proposition 22 to limit marriage to heterosexual monogamists) were unconstitutional. Prop. 8 sought to insert a clause into the Californian Constitution defining marriage as a union between one man and one woman.

The Campaign

In the midst of a growing financial crisis, US$70 million was spent by both sides during the campaign. The Church of Jesus Christ of the Latter Day Saints mobilised its constituents in call centres and door-knocking campaigns to support the campaign. On the other side, donations came in from gay and lesbian support groups around the country, individual donations of over US$1 million from a number of prominent figures in the entertainment industry, as well as $100,000 each from Apple and Google corporations.

The campaign brought out some nasty and bitter arguments, no more so than accusations that gay marriage would become a part of the public school curriculum if the Supreme Court’s decision was allowed to stand. The idea that children could be influenced or indoctrinated with a so-called ideology turned many voters who feel uncomfortable with the whole “gay” thing.

The Aftermath

California was the first state to implement, and then remove, marriage rights for same sex couples. The significance of this cannot be understated. It is one thing to bar access, but another to strip rights from a particular class of people. Imagine, for instance, if Hispanics had been denied the right to vote.

Protests against the passage of Prop. 8 have been widespread. Same-sex action groups have organised boycotts of Mormon-owned businesses. On December 10, an organised “Day without a Gay” saw hundreds “call in gay” and not participate in economic activity, drawing attention not only to Prop. 8, but of the fact that only 20 states protect employees from discrimination based on sexual preference. However, the campaign is not over yet. A number of legal challenges have arisen over the nature of the amendment.

Constitutionality

The case of Strauss v Horton challenges the very nature of the proposition. At question is whether Prop 8. is a constitutional amendment. If it is merely a constitutional revision, which it has been argued to be because it alters the underlying sentiment of the Constitution, it is not open to citizens to vote on via referenda.

Related to Strauss v Horton is Tyler v Horton (whilst Horton may seem like a homophobe, he is really just the Attorney General), which seeks to invalidate the proposition based on the equal protection clause. It is argued that the initiative powers do not allow citizen initiated referenda to divest politically unpopular minorities of protection. Thus, Prop. 8 not only subverts the power of the courts to make these decisions, but it denies protection of individual rights by the state.

Both of these cases are scheduled to be heard in March 2009. However, they raise wider questions about the position of the lesbian, gay, bisexual, and transgender/transsexual community in the wider legal framework.

This issue sits at the heart of the clash between liberalism and democracy. Whilst it may be the democratic will to deny the rights of a particular group, it sits oddly with liberal ideas. Most Western democracies are founded on ideals of individual liberty as paramount, and thus each citizen has certain rights that, no matter how unpopular they are with the rest of the population, are inalienable. To allow such rights, especially of a politically unpopular group, to be put to a vote, makes minorities vulnerable to changing moods.

To illustrate the point, suppose that Prop. 8 instead removed the right to vote for all people of a particular income class (say, earning under $10,000 per year). As an initiative, it passes because the majority of voters fall into a class higher than this and feel that their contribution to society is limited by those who earn less. However, the upper classes aren’t adversely affected by such a change. They can still vote, and their voice still counts. But the poor have everything taken away.

Now, it could be argued that this is just the will of the people and should be enforced as such. But whether the voice of the people is an appropriate mechanism, especially where minorities are concerned, needs careful consideration. Prop. 8 is not the end of gay marriage in California. The push to allow gay couples equal benefits won’t be stopped by a vote financed by groups who have always been opposed to all things gay.

Gay marriage is just the most recent debate in a long line of issues that challenges the very nature of Western democracy.