The Legislature Moves

California's state legislature has passed two resolutions requesting that the state Supreme Court strike down the result of the vote in Proposition 8:

Leno compared passage of Proposition 8 with public reaction in 1964 to a new state fair-housing law. Voters tried to reverse the law by approving an initiative that gave people a right to discriminate against racial minorities when renting or selling a home.

The state Supreme Court in 1966 struck down the initiative, which had been endorsed by aspiring gubernatorial candidate Ronald Reagan.

"These issues of discrimination clearly have their fashionable moments," Leno said, noting that Reagan later reversed his position.

What strikes me is that the opponents of Proposition 8 could have brought this up loud and clear before the initiative - but didn't.

Yes, there was an early court challenge, but the gay establishment in California sure acted as if Prop 8 was kosher when they thought they could win it. Nothing has changed. If the rights were inalienable, and inherently not up for a democratic decision, gay activists and our allies should have refused to take part in the vote at all - or at least make it perfectly clear that they believed the voting was illicit.

I understand the constitutional arguments here and they are not trivial. But there's a danger in being perceived as saying to the opponents of marriage equality: heads we win, tails you lose. We''ll participate in democracy but only if we win. If we lose, the whole exercize is illegitimate. That seems to me to border on bad faith. And it's worse politics. Who wants the critical moment in the securing of marriage rights to be imposed by a court against a clear majority vote of the citizens? Give it time, and conviction, and we'll win where it matters most: at the ballot box.