California’s Proposition 8

One sad element in the upcoming American election is California’s Proposition 8: an attempt to amend the state constitution to ban gay marriage. Restricting the rights of homosexuals is every bit as repugnant as doing so on the basis of sex or race. Hopefully, people in a few decades will view homophobia with the same near-universal hostility we nor direct towards racism and sexism.

Those unwilling to support gay marriage really ought to be ashamed of themselves. It is especially despicable to try to prevent it through constitutional amendment, given how a key role of constitutions in democratic political systems is to protect the rights of minorities that often face discrimination.

[Update: 22 December 2008] As everybody knows, Proposition 8 passed. Now, some people are seeking to have existing gay marriages voided. Hopefully, the court cases arising from this will eventually overturn the referendum, given that it is never appropriate to decide on minority rights by such means.

Author: Milan

In the spring of 2005, I graduated from the University of British Columbia with a degree in International Relations and a general focus in the area of environmental politics. In the fall of 2005, I began reading for an M.Phil in IR at Wadham College, Oxford. Outside school, I am very interested in photography, writing, and the outdoors. I am writing this blog to keep in touch with friends and family around the world, provide a more personal view of graduate student life in Oxford, and pass on some lessons I've learned here.

39 thoughts on “California’s Proposition 8”

  1. My first intuition is that banning gay marriage should be against the constitution. But, wait, the constitution (in a democracy) is not actually the transcendent law, but a piece of paper that some imperfect people make up and modify.

    As such, the very thing which is meant to protect against the making of unjust laws which have popular support, can itself come to include unjust laws with popular support.

    The weakness of democracy is the failure of the popular will to be just. Of course, the stupidity of democracy is to assume that the popular will will be just, even most of the time.

  2. Obama vs. McCain vs. Gay Marriage

    In California, the presidential race is taking a back seat to gay marriage.
    By Farhad Manjoo

    No one doubts that Barack Obama will win California by a double-digit margin this year. In some northern counties, he may well hit 90 percent. Yet politics in this nonswing blue state still defy prediction. California’s 2008 ballot is a thicket of closely contested, closely watched social issues. And on some of the biggest questions, blue voters—in one case, the very same voters that Obama is counting on—look ready to swing red.

  3. This is tangental to your point, but personally I don’t think the state should have a role in legitimating particular, narrowly defined forms of personal relationship at all, for much the same reasons that Trudeau argued the state should get out of people’s bedrooms. As such, I am essentially opposed to the institution of civil marriage (and indeed to religious marriage, though for different reasons). So saying, if civil (i.e. state recognised) marriage exists, then I believe strongly that it should not discriminate against same sex couples.

    I saw a lot of publicity about the ‘No On Prop 8’ campaign whilst I was in San Francisco, & I got the sense that its residents (particularly those in the ‘gayborhood’ such as Castro) will be furious, outraged and fundamentally disenchanted with politics if it passes. I also think a yes vote on Proposition 8 would be the biggest indicator that gay & lesbian equality is untenable in the US in the current climate – if gay marriage isn’t acceptable in California, where city workers have had health insurance coverage for gay partners since the ’70s, then GLBTQ folks in the US may be fucked.

  4. It is especially despicable to try to prevent it through constitutional amendment, given how a key role of constitutions in democratic political systems is to protect the rights of minorities that often face discrimination.

    The injustice of this new law is precisely why it needs to be in the constitution. Otherwise, the courts would strike it down almost immediately.

  5. Sarah,

    “I don’t think the state should have a role in legitimating particular, narrowly defined forms of personal relationship at all,”

    I agree. However, this is because I believe that right isn’t just what people vote for. In democracy, rightness is just a product of a certain format of assent. This is why I have to be a monarchist – I believe in the duty of the (unelected) senate to block unjust legislation even when it is popular.

  6. Tristan,

    In most democracies, constitutions are meant to protect against discrimination. Unfortunately, the force of intolerance can sometimes overcome the intention of the law.

    As for the limits of democracy, I maintain my position that it is justified more because it prevents the worst political outcomes, not because it tends to produce the best ones.


    I see appeal in the idea that the state shouldn’t define marriage at all: that it could be just another legal arrangement that any two adults can choose to enter into, not unlike a mortgage or business partnership. The idea that the state should enforce a particular normative conception of marriage seems guaranteed to lead to state intervention in how people live their private lives.

    [I]f gay marriage isn’t acceptable in California, where city workers have had health insurance coverage for gay partners since the ’70s, then GLBTQ folks in the US may be fucked.

    To some extent, this definitely seems true. That being said, it is possible that for whatever reason marriage is just a bridge too far for most people. Look how progressive politicians are forced to endorse ‘anything but.’ It is certainly unjust to refuse marriage to gay couples, but if that is the only major exclusion, it will still be a big improvement over the state of affairs in most times and places. Quite possible, we just need to wait for enough generations to die and for gay marriage to become unobjectionable to a majority.


    True, and sad. The same goes for attempts to ban abortion through constitutional amendment.

  7. Tristan,

    You don’t need to be a ‘monarchist’ to believe that the popular will must sometimes be resisted by those with power. All it requires is some pragmatism and awareness about human and group psychology.

    Just think of the famous scene in To Kill a Mockingbird where Atticus prevents the mob from lynching Tom Robinson. Most people realize that the popular will can be prone to excess, or driven by selfishness.

  8. Florida Amendment 2 is a proposed amendment to the Constitution of Florida that would ban both same-sex marriage and civil unions in the state. The initiative is to go before voters in Florida on November 4th, 2008, with similar initiatives in Arizona and California.

  9. “However, while there are many objections to this proposition — further government encroachment on personal lives, ambiguously written text — it is the chilling and discriminatory effect of the proposition on many of our employees that brings Google to publicly oppose Proposition 8. While we respect the strongly-held beliefs that people have on both sides of this argument, we see this fundamentally as an issue of equality. We hope that California voters will vote no on Proposition 8 — we should not eliminate anyone’s fundamental rights, whatever their sexuality, to marry the person they love.”

  10. I agree with you Sarah, let’s just get rid of the whole bloody institution in the first place. After all, even the original legal purpose – that is, the transfer of property (in the form of an ideally-virgin female) from one man to another – is no longer applicable since some upstart went and got women defined as people too. Straight people have further destroyed the “sacred” institution of marriage through decades of adultery and divorce, so if anything, maybe we should ban straight marriage?

    As for the “will of the people” and it’s lack of proclivity towards actual social justice, I still see that as an education problem – but not one that can be solved without serious reinvestment in and reorganization of our public education systems. All kids start out small minded and selfish (and for the young, it’s even appropriate and a good survival strategy), it’s just that many don’t seem to outgrow that phase these days because instead of learning skills of empathy and understanding cause and effect, they’re taught consumption and the myth of the liberal individual, which creates the “me-first” mentality I see everywhere these days.

  11. Sasha,

    “All kids start out small minded and selfish”

    I have to say I disagree. In my experience, the youngest people I meet are the least selfish, I think that its the teaching of consumption, and as you point out “the myth of the liberal individual”, which makes us small minded and selfish. But crucially, I think that behind whats taught remains an inquisitiveness which takes time to teach out of people. I think this is why when I’ve taught high school philosophy, the students are much more apt to grasp complex, non-mainstream ideas than if I try to present the same concepts to university level students.

    I think in a very simple way, education is rigor mortis for the mind – by being filled up with facts, “things we know”, we lose our need and ability to question.

    I think if people are “innately good” it’s not because they are born with some “content”, like a set of static propositions or dispositions or attitudes to act for certain empathetic or sympathetic reasons, but because we are originally open to the world around us – open to recognizing salient moral facts about our situation, open to questioning dominant modes of thought and perception.


    My “monarchist”, this time, I only mean that the unelected Senate (basically, the Gentry?), ought take the place of the Governor General (who can’t act, mostly), and veto popular legislation, or even constitutional change, even when its supported by all ten provinces, and all the parties in power.

    Although, if the Senate can be put out of existence by a constitutional change, doesn’t that mean that Constitutional change doesn’t need the senate’s approval?

  12. Tristan,

    I definitely think taking university level economics courses makes people more selfish and strategic, as well as less likely to act charitably or without the certainty of reciprocity.

    Barriers that can be overcome still have legal and political importance. It is one thing to pass a law with the approval of the Senate, quite another to eliminate the Senate, then pass the law. The level of popular scrutiny and legal and political difficulty involved in the latter is much greater.

    Institutions like the senate are more likely to be reactionary than progressive, in any case. Just look at the record of Canada’s Supreme Court in dealing with homosexuality. Overall, we have little reason to hope that a bunch of grand old men and women will consistently display more wisdom than the population as a whole or the elected government of the day.

  13. Well, I guess Californians can always take solace that they aren’t in Jamaica. From Wikipedia:

    “In April 2006, the Sunday Herald ran a front page headline “No homos!” in which then opposition leader and current Prime Minister of Jamaica Bruce Golding vowed that “homosexuals would find no solace in any cabinet formed by him”.[3] The statement was supported by several clergymen and a trade union leader. During the 2001 elections Golding’s party used as its theme song “Chi Chi Man” by T.O.K.,[4] which celebrates the burning and killing of gay men. The purpose of the use of this song was an attack on the then Prime Minister P.J. Patterson, who at the time, was the subject of a whispering campaign on his sexuality, with some critics referring to him as ‘P.J. Battyson.'”

  14. The record of elites in resisting discriminatory democratic decisions is mixed. To an extent a ‘liberal’ elite can block popular moves (eg. the hereditary peers in the UK temporarily blocked some repressive criminal justice laws that were later struck down by European courts, & decades earlier a lone peer blocked the imposition of sterilisation against the mentally subnormal in the UK) but elites are not always liberal, & liberalism itself is not immune to the influence of the broader society, hence the exclusion of women, slaves etc.
    So, yes, a check on democracy is useful (hence the presence of an upper house in Parliament & of the judiciary) but I think it is unwise to put all one’s faith in such institutions, especially if that leads to political change via litigation instead of changing opinions by persausion & education as Sasha advocates.

  15. Sorry to delve into a debate on the purpose of the senate rather than the topic of the original post, but I have a bit of an issue with this statement: “I believe in the duty of the (unelected) senate to block unjust legislation even when it is popular.”

    The problem lies in the corollary of this statement – can situations not arise in which an unelected senate blocks just legislation corrects an unjust situation? There are good reasons why this is less likely to occur (mainly because the Senate in Canada has been dominated by Liberals rather than Conservatives for the past hundred years), but certainly the historical popularity of one party over another doesn’t justify it as a good system. Just imagine a Senate stacked with Conservatives blocking progressive legislation introduced by popularly-elected progressive MPs… in this situation, the unelected Senate would have the opposite effect. (I am not suggesting that the Conservatives would do that, but this is just a hypothetical example.)

    The point is that overly-partisan hacks (who may have served a Prime Minister loyally and therefore be rewarded with such an appointment) may not be the best way to give legislation a sober second look. A system whereby senators are elected to a single 10 year term without chance for re-election may be a better way to accomplish this objective.

  16. Neal,

    Homophobia in much of the world is certainly dramatically more acute than in North America. That being said, the failure of states like Canada to recognize homosexuality as entirely normal and unobjectionable may help slow the rate at which that view spreads globally.


    In the long run, education is clearly vital. That is one reason education has become such a cultural battleground in some places. One certainly has to worry about some of the things being transmitted to some homeschooled children. While there is virtue in parental choice, it is worrisome that some people will never be exposed to important mainstream ideas and fellow students who hold them.


    I agree that institutions like the senate can promote injustice as easily as justice. In most cases, the legal recognition of progressive developments lags its mainstream cultural acceptance. I wonder how far off that is for homosexual marriage in Canada and the United States.

    One remarkable and regrettable feature of political thinking has been the failure of people to extend their own logic in basic ways: “All men are equal, but women clearly aren’t.” “All people are equal, but those of other races clearly aren’t.” “All couples are equal, but not same-sex ones.” Etc.

  17. Tristan,
    When I say all kids start out small minded and selfish, it doesn’t have the negative implications it would if I were to say it to an adult. What I don’t mean is that kids are mean hearted or incapable of compassion etc. but through the study of cognitive development, it’s a literal fact. We (and I do generalize here, of course there are variations in rate of development) begin by understanding ourselves first, and then the sphere immediately around us, not expanding to encompass those we don’t personally know until somewhere around 8-10 years old. Their minds are “small” per se because their worlds are small, and their selfishness is a necessity – to build self-awareness, needed in adult life.

    In addition, I had to grimace at the brush with which you painted education! I’m sorry to hear that you think that we teachers spend our days creating “rigor mortis for the mind.” Teaching content does happen sometimes (more than it should in my humble opinion), but the emphasis is not on the regurgitation of acquired, established knowledge. Rather, it is on skills: how to think, quite literally. When I speak of political education, it is to this that I refer, to teaching how – how to analyze competing groups and interests, how to perceive bias, how to research information that some interests may try to hide, how to assess one’s own interests, the importance of empathy and considering others’ best interests, etc etc. I feel that this is the direct opposite of creating mental rigor mortis; it’s far more like training mental gymnasts – if done well, at least. And true, not everyone does it well, but in terms of current pedagogical theory and the emphasis of our curriculum, as established by the ministry of education, this is definitely the current thrust.

  18. But wait! There’s more!

    You really don’t want to read about another terrifying crazy Republican woman, do you? Too bad. Here it is: a good Christian homeschooling mom who doesn’t like gay people. And by “doesn’t like”, I mean “wants them stoned to death and everything they touch blown up.”

    “A friend recently sent me this article about a “gay-friendly” high school. If we were living in a biblical society, homosexuality would be punishable by death so such a school would be unnecessary. Although I’m against the special accommodations, perhaps this new trend of segregation will protect straight kids from these predators. With any luck, some radical will blow up the gay school. No, I’m not condoning vigilantism–I’m merely saying that it would be poetic justice.”

    This has been yet another chapter in Our Scary American Electorate.

  19. Thursday, October 23, 2008
    Prop 8 a Toss-Up

    A ‘yes’ vote on California Proposition 8 would amend the state’s constitution to prohibit gay marriage. A ‘no’ vote would maintain the constitution, which the California Supreme Court ruled in May provides equal protection for gay marriage.

    SurveyUSA and PPIC have new numbers out on the issue, with SurveyUSA having the gay marriage ban leading by 3 points, and PPIC having it trailing by 8 points. Field should have a poll out on the issue sometime next week.

  20. Proposition 8

    Oct 30th 2008 | LOS ANGELES
    From The Economist print edition
    California’s fight over gay marriage hints at changes in the culture wars

  21. It will be awfully sad if people’s bigotry and small-mindedness get written into the Californian constitution today.

  22. It’s sad, pathetic, and disappointing that some people in California are so bigoted.

  23. “After all, traditional marriage isn’t just analogous to sex discrimination—it is sex discrimination: Only men may marry women, and only women may marry men. Same-sex marriage would transform an institution that currently defines two distinctive sex roles—husband and wife—by replacing those different halves with one sex-neutral role—spouse. Sure, we could call two married men “husbands” and two married women “wives,” but the specific role for each sex that now defines marriage would be lost. Widespread opposition to same-sex marriage might reflect a desire to hang on to these distinctive sex roles rather than vicious anti-gay bigotry. By wistfully invoking the analogy to racism, same-sex marriage proponents risk misreading a large (and potentially movable) group of voters who care about sex difference more than about sexual orientation.”

  24. Google Challenging Proposition 8

    By kdawson on not-being-evil

    theodp writes “Coming the day after it announced layoffs and office closures, Google’s California Supreme Court filing arguing for the overturn of Proposition 8, which asks the Court not to harm its ability to recruit and retain employees, certainly could have been better timed. Google’s support of same-sex marriage puts it on the same page with Dan’l Lewin, Microsoft’s man in Silicon-Valley, who joined other tech leaders last October to denounce Prop 8 in a full-page newspaper ad. But oddly, Microsoft HR Chief Mike Murray cited religious beliefs for his decision to contribute $100,000 to ‘Yes On 8’, surprising coming from the guy who had been charged with diversity and sensitivity training during his ten-year Microsoft stint. “

  25. America’s constitution, however, does not allow rights to be stripped from its citizens by majority vote. Specifically, the federal Supreme Court ruled in 1996 that any laws motivated by homophobia (or other bigotry) are unconstitutional. The motivation behind the Proposition 8 campaign thus becomes an issue. Its sponsors are among the witnesses, and their television advertisements and press releases may become evidence. Scholars will testify about homophobic discrimination.

    They will also be cross-examined about other claims against gay marriage. One concerns the sanctity of tradition. But, as Mr Olson has argued, the fact that something has been custom in the past does not require it to remain that way–otherwise, America would still ban interracial marriage while maintaining segregated schools and debtors’ prisons.

    Another question is whether or not marriage specifically serves procreation. America does not bar, say, infertile couples or old women from marrying. What, then, about the issue of whether gays can raise children? The two women plaintiffs happen to be bringing up four children in what appears to be an exemplary environment. What about the alleged harm to heterosexual marriages by homosexual ones? Psychologists or other experts would have to prove that straight couples are threatened by gay ones, which appears tough.

    Ultimately, Mr Olson is trying to establish that conservatives should welcome, not fear, gay marriage. They revere marriage as a social institution, so the respect of gays for it should be a cause for celebration, not disgust. And there is the 14th amendment of the constitution, which guarantees Americans equal protection under the law. Mr Olson is reminding conservatives that denying homosexuals access to a basic institution of society would appear to violate equality, and thus the constitution.”

  26. Olson argued the suit wasn’t premature; he thought he could count five votes for gay marriage on the current Supreme Court, citing swing Justice Anthony Kennedy’s opinions in two cases that barred other forms of anti-gay discrimination. It’s hard to find anyone else, though, who thinks the Supreme Court is ready to grab the baton of gay marriage. That would require the court to strike down 40 state laws that define marriage as between a man and a woman, as Margaret Talbot reports in her piece on Perry in the New Yorker. “This is not the moment for federal judges to step in and close off discussion,” Yale law professor William Eskridge and his co-author Darren Spedale wrote in Slate when Perry was filed. “Why not continue with the state-by-state process of debate, experimentation, and slow but increasing movement toward marriage equality?”

  27. Who Will Win the Gay Marriage Trial?
    A road map to the routes to victory for both sides.
    By William N. Eskridge Jr. and Darren Spedale
    Posted Friday, Jan. 29, 2010, at 10:45 AM ET

    With the testimony in the Proposition 8 trial now closed, it’s time to consider: Which side will win? Will Judge Vaughn Walker find that California’s limitation of marriage to one man, one woman violates the U.S. Constitution? Legal doctrine affords both sides avenues for victory. It also generates landmines (arguments that could create controversy for Judge Walker) and lavender herrings (silly diversions that he would be wise to avoid).

    If Judge Walker finds that Proposition 8 reflected nothing but prejudice or animus against lesbian and gay people, he will rule it unconstitutional. In the 1996 case Romer v. Evans, the Supreme Court held that a voter initiative targeting gay people because of “animus” violates the Equal Protection Clause of the 14th Amendment, because prejudice against a social group cannot be a “rational basis” for exclusionary laws.

    If Walker doesn’t find that Proposition 8 was motivated by animus, he could uphold the California initiative based on one of several “rational” bases put forward by lawyer Charles Cooper and his team for the law’s defenders. For example, they maintain that gay marriage would be bad for children, because it would legitimize the practice of raising children in lesbian or gay households. But the children-will-be-harmed argument is a lavender herring, not only speculative but suspiciously close to old stereotypes about lesbian and gay people as anti-family and predatory toward children. There is no reliable social science evidence that lesbian and gay couples do a bad job raising children, and at the trial Cambridge professor Michael Lamb surveyed the extensive evidence suggesting that those couples do a good job. Also, wouldn’t children being raised by unmarried couples benefit if their mothers or fathers could cement their union in marriage? This is a defense Judge Walker should eschew.

  28. That court case will be very interesting, though I really can’t see what sort of legal argument you could use to oppose the unconstitutionality of Proposition 8.

    That last linked article does raise one important point, though: if the courts overturn the California referendum, it may well prompt an anti-gay backlash in other states.

  29. “But for all the lofty language about freedom and morality, nobody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice.

    It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn’t much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would “effect some twenty-three harmful consequences” and then putting on almost no case.

    Walker notes that the plaintiffs presented eight lay witnesses and nine expert witnesses, including historians, economists, psychologists, and a political scientist. Walker lays out their testimony in detail. Then he turns to the proponents’ tactical decision to withdraw several of their witnesses, claiming “extreme concern about their personal safety” and unwillingness to testify if there were to be “recording of any sort.” Even when it was determined that there would be no recording, counsel declined to call them. They were left with two trial witnesses, one of whom, David Blankenhorn, founder and president of the Institute for American Values, the judge found “lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponent’s factual assertions.” Blankenhorn’s credentials, methodology, lack of peer-reviewed studies, and general shiftiness on cross examination didn’t impress Walker. And once he was done with Blankenhorn, he turned to the only other witness—Kenneth P. Miller—who testified only to the limited question of the plaintiffs’ political power. Walker wasn’t much more impressed by Miller, giving his opinions “little weight.”

    Then come the elaborate “findings of fact”—and recall that appellate courts must defer far more to a judge’s findings of fact than conclusions of law. Here is where Judge Walker knits together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy’s brain. Among his most notable determinations of fact, Walker finds: states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child’s parent is not a factor in a child’s adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay. (Brand-new data show that the needle only really moved in favor of the Prop 8 camp when parents of young children came out in force against gay marriage in the 11th hour of the campaign.) He found that stereotypes targeting gays and lesbians have resulted in terrible disadvantages for them and that the Prop 8 campaign traded on those stereotypes.”

  30. THE law firm of King and Spalding has pulled out of its contract with Republicans in Congress to defend the federal law that makes it illegal for gay people to get married, a law the Obama administration has decided not to defend because it believes it to be unconstitutional. The firm’s chairman offered his excuses, saying “the process used for vetting this engagement was inadequate.” It’s pretty clear the decision came in response to the vocal opposition of a lot of wealthy, well-connected gay people.

  31. Republicans Sign Brief in Support of Gay Marriage

    WASHINGTON — Dozens of prominent Republicans — including top advisers to former President George W. Bush, four former governors and two members of Congress — have signed a legal brief arguing that gay people have a constitutional right to marry, a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election.

    The document will be submitted this week to the Supreme Court in support of a suit seeking to strike down Proposition 8, a California ballot initiative barring same-sex marriage, and all similar bans. The court will hear back-to-back arguments next month in that case and another pivotal gay rights case that challenges the 1996 federal Defense of Marriage Act.

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