George Will's column this morning is, yet again, a must-read. Money quote:
Just eight years ago, Proposition 22 was passed, 61.4 to 38.6 percent. The much narrower victory of Proposition 8 suggests that minds are moving toward toleration of same-sex marriage. If advocates of that have the patience required by democratic persuasion, California's ongoing conversation may end as they hope. If, however, the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument about abortion has been by judicial highhandedness.
I'm emotionally conflicted on this. As someone who has spent much of my adult life making the case for gay equality and for civil marriage as the sine qua non of such equality, I'd love marriage to be real in California for all Californians. But intellectually, I'm not conflicted. I'm with George.
We lost the Prop 8 battle because we ran a dreadful campaign run by the usual craven Human Rights Campaign cowards and incompetents. We deserved to lose. We do not deserve to get a do-over via court power. There are some interesting legal and constitutional arguments here that are not as easily dismissed as George might like. But as a political matter - and this is a political struggle - I hope the court decides to allow Prop 8 to stand. I do not want civil equality imposed by judicial fiat in the most populous state in America - in the face of a close initiative vote. It would be a horribly pyrrhic victory. It would taint this movement's power and message and moral standing.
I don't think George fully grasps what the denial of marriage equality does to the souls of gay folk, and does not appreciate how we are in fact deeply wounded by the heterosexual majority in denying us core equality. But he's right that California already provides substantive state protections for gay couples. He's right too that recent history suggests we can easily win this in the democratic sphere and have been making amazing gains in persuading people of the justice of the cause. To impose a victory by fiat when in a few years, if we do the work we should, we can gain a victory with deep democratic legitimacy, would be to snatch pseudo-victory from the jaws of real victory.
The court did its duty and its 2008 ruling is part of civil rights history. It need not force this now, and shouldn't. Let's put this to a referendum again. And let's do the hard work to win.