Reading all the accounts of the oral arguments on Prop 8 yesterday (for a diverse round-up, see here), I have to say there's a chance of what, to my mind, is the optimal decision. The Justices seemed highly skeptical - and rightly so - that a voters' initiative could not change the results of a controversial court decision. Since the No On 8 forces campaigned last year under the same assumption, it's a little rich to see them now protest that the vote was not a real one anyway and they engaged in it only on the assurance that they would win. Moreover, if the court upholds Prop 8, we avoid giving the Hewitts and Romneys and Santora their "black robes" moment, an endless harangue about evil judges despotically dictating to God-fearing Americans. I've been in enough of those arguments to want to avoid them in future. They deflect debate from the real issue: that gay marriage is good for gays, straights and society as a whole. They give bigots a legitimate reason to oppose our equality, while allowing them to avoid the real arguments for it.
At the same time, I devoutly hope that the 18,000 existing civil marriages are not retroactively nullified.
Removing good faith, already-issued marriage licenses from couples who had every reason to believe they were valid when they got married seems repellent to me. It is cruel to allow a person's marriage to be retroactively invalidated by a vote. Divorce is always wrenching. But having people who believe you are evil and immoral force you into a divorce is horrifying. It may give Rush Limbaugh a thrill to see gay couples torn apart under law, and their children suddenly deemed illegitimate, but most decent people would disagree.
More to the point: the biggest argument we have for marriage equality is the existence and life of so many married couples. Just like the battle to end the anti-miscegenation laws, the fight for gay equality will be immeasurably aided by the facts on the ground of the actual marriages so many find repugnant. Those marriages will help dispel fear and paranoia, will reveal the banal and admirable truth of many gay couples' love and commitment, and expose the bigotry of those who refuse to accord them respect and dignity. Alongside these role models, emboldened and smartened up by previous battles, let's take this to the people again. And win.
(Photo: Drew Cloud and Jacob Whipple, who are engaged to each other, watch a live broadcast as the California Supreme Court hears arguments for and against Proposition 8 on March 5, 2009 in San Francisco, California. The controversial proposition that prohibits gays and lesbians the right to marry is being challenged by the gay community. By David Paul Morris/Getty.)