More on Prop 8

Our frequent commentor Flyovermiss shared with me me something she’d posted privately elsewhere on the relationship between Prop 8 and the Obama victory, which I found particularly eloquent:

President-elect Obama listed us gay folk among his Americans in his victory speech last night, and the web tells me that’s a first for a president-elect. Since I knew I wasn’t one of Sarah Palin’s “real Americans”, it felt good to be named as such by the man overwhelmingly chosen by Americans to lead us into our future. It felt like possibility, like community, like openness and joy.

Today, looking at the results on Prop 8 in particular, those words feel like ashes in my mouth. The way the percentages work out, a substantial number of California voters went into the polls and said yes we can to Obama, and oh, no, you can’t to me and mine. I’ll be proud to remember the day that America chose Obama as president, but I am also stuck remembering that on that very day, even progressive Americans still denied me and others like me basic civil rights.

KC reminds me to see the positive, to trust the progressive momentum that Obama both represents and channels to bring good things for the GLBT community as well. Part of me thinks she’s right. Another part of me knows that the pall this casts over Obama’s victory, for me at least, can’t be ignored.

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5 Comments

Filed under election 2008, marriage, Social Justice

5 responses to “More on Prop 8

  1. htg03

    It was bitterly painful for me, and especially so to read the break down of exit polling: 70 percent of African American voters supported prop 8, as did half of all Latinos and half of all Asian Americans.

    And now white gay people are angry.

    When will we learn not to turn against each other this way?

    If white LGBTs had paid any attention to the minority community, they might have seen this coming before it was too late.

    And I think it’s the perceived taint of race and class that drives minorities to the church. It’s the only institution that will tell them they are respectable. I don’t think that’s an excuse for hatred, rather an indication of how racism still shapes our interactions to everyone’s detriment.

    We can wish and wonder what will happen during the Obama presidency, but it’s not off to a good start so far as far as civil rights are concerned. Sure, Obama came out against prop 8, but he also stated unequivocally that he was against same-sex marriage. That’s not an endorsement.

    So while I’m not going to lay the blame for centuries institutional racism at his feet, I’ll say he hurt the civil rights movement in this country with this profound failure of leadership. And I’m ashamed to be a Californian and an American today.

  2. Saw some other blogs on prop 8, but settled on this one as the least rabid. But… at the dire risk of sounding like a troll, aren’t the opponents and the proponents of prop 8 wrong? Don’t get me wrong! Hear me out.

    I would assume Obama’s position comes from his informed legal view of the matter. In most cases, courts across the country ruled in favor of gay marriage unconstitutionally. They acted unilaterally in interpreting rights which allowed for gay marriage, but dangerously so. You can’t interpret a right so broadly and in only one case without arranging an ad hoc basis for dealing with issues of civil rights and thereby imperiling the consistency of the legal system as a whole. Many in favor of such civil rights don’t even know that they are forwarding views which only imperil many other rights. Last I heard the consensus among lawyers was that, contrary to the popular view, gay marriage rights had to be attained through democratic, legislative processes. The problem is most people appeal to a discourse ruled by this sixties, civil rights mythology of taking everything to the courts, rather than asserting themselves legislatively first. What they forget is that the civil rights movement only went that route after the failure of democratic processes. But this is what informs Obama’s position. He might be against gay marriage rights as a function of court interpretation, but wholly for gay marriage as a legislative and moral goal.

    Is my view incorrect, though? Because if it is, then the anti’s and the pro’s hold equally misleading and invalid views, and neither can blame one another. Originally I got these views from a law class, and one essay in particular in which two legal scholars refuted the matter. Both scholars were morally for gay marriage, except one was against it in the case of court rulings. A generally progressive-leaning classroom, we all agreed that the latter view was more fundamentally valid. I think we get dangerously off course as a nation when we presume that everything divides neatly into left and right dogma when it comes to advancing civil rights. I mentioned the same position on the HP, and instantly got feedback that I was an ignorant, unAmerican, country bumpkin homophobe. Unfortunately, that only vindicated my view.

  3. jke4

    I know one of our frequent commentors is a lawyer so she may want to weigh in on some of these details. But in the meantime, I just want to point out that the legislature of this nation, under Clinton, passed the DOMA (Defense of Marriage Act). If that doesn’t constitute a failure of the legislature branch to adequately address the issue I’m not sure what does.

    And I’m a bit insulted that you don’t consider us rabid.

  4. flyovermiss

    Jesse, thanks for your thoughtful approach on this. As one of the lawyers in the room, I much appreciate your clear respect for the rule of law and your desire for gay rights to move forward within the boundaries of those rules.

    You may, however, be conflating strategy with jurisprudence. To unpack that a bit, I think few gay rights activists would argue with the proposition that legislative victories are vastly preferable to court ones. Far better to have the majority of the electorate confirm the rights of gays than to have to challenge legislative denials of those rights in court. However, if the majority of the electorate won’t halt legislation that strips away gay rights or even the possibility thereof (as do the federal DOMA and the state mini-DOMAs), much less vote affirmatively in favor of gay rights, I don’t see that the gay rights movement is doing anything against the cause of civil rights or the rule of law by going to the courts. Speaking on a slightly different point a few years ago, the lawyer who won the same-sex marriage case in Massachusetts said something to this effect: “The institution of civil marriage gives hundreds of tangible rights and benefits to legal spouses. How can I as a lawyer not do everything in my power to obtain equal access to those rights for my gay and lesbian clients?” Using impact litigation in this way is jurisprudentially sound, although politically much riskier.

    Separately, I’m not sure that citizen initiatives such as Prop 8 have quite the same status, for lack of a better word, as laws produced by a democratically elected legislature. The courts should arguably have a bigger role in reviewing the products of this kind of “direct democracy” than with respect to laws produced through the representative process.

  5. Jke4, Flyovermiss,

    Thank you for your insights. Yeah, my understanding of the technical, legal aspects of gay marriage stopped somewhere around the DOMA and I guess I was just wondering if something had fundamentally altered the situation, and if therefore the situation in California was a consequence of factors I hadn’t heard about. I suppose not, which sucks because then the only remaining option is pursuing rights through the courts due to an unyielding legislative process. And all the while people are subject to the compulsion of popular referendum, ie prop 8, simply because perhaps we’ve reached this point where most people’s ideas of progress have congealed and rendered them complacent with regard to democratically-endorsed inequality. But on the bright side, perhaps the reaction to Prop 8 will inspire some kind of counter-reaction. Definitely a slow process of changing attitudes, to say the least. But the silver lining may be that quite a few progressive measures–both political and cultural–are riding the (massive, light, awesome) coattails of last week’s elections. Personally I never believed the legal mechanisms of the DOMA were constitutional, so maybe a new court will avert a much slower legislative course, but that’s a separate subject. Anyway, thanks for your comments, much appreciated!

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