Ari Ezra Waldman | California | Gay Marriage | Law - Gay, LGBT | News | Proposition 8

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Marriage Equality in California: Politics, the Ballot and 2012

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Eqca Activists at the organization Equality California (EQCA) announced on April 4 that they are beginning an outreach campaign to gauge the interests of gay Californians on putting marriage equality on the ballot in 2012. According to EQCA's press release, the organization will "survey its membership, hold 10 town halls across the state and an online town hall, conduct a poll of likely 2012 voters, consult with political experts, coalition partners and engage with its members and the LGBT community." Whether EQCA runs the possible campaign is not my (present) concern. The more important question is whether we want the existence of our rights to be subject to a majority vote.

Let's assume that if marriage equality goes on the ballot in 2012, we will win and same-sex couples would be allowed to marry in California. As a matter of law and legal policy, is that a good idea? What do you think?

A short discussion of some factors to consider AFTER THE JUMP...

Putting marriage equality on the ballot has certain advantages. The Prop 8 case -- Perry v. Brown -- is progressing through the judiciary like a sedated tortoise and there is no indication that the Ninth Circuit's final decision, which will likely be appealed to the Supreme Court, will be handed down before 2012. What's more, if the Court recognizes the Prop 8 Proponents' standing, the merits case -- the question of marriage equality in California -- will have to go up the federal court ladder again. That could take us into 2013 or 2014.

And, during that time, the stay of Judge Vaughn Walker's ruling will remain in place. The Ninth Circuit's decision to keep the stay and not allow same-sex couples to marry while Perry moves at its exceedingly slow pace ensures that as long as Perry is marriage equality's great hope, same-sex couples will be harmed by the stay.

Prop8 But, putting marriage equality on the ballot again transforms our rights into a ping pong ball being swatted by competing groups. Participating in the political process for our rights gives us whip lash: we can marry, then we cannot, then we can (again, assuming we win in 2012). Who's to say there will not be another anti-gay ballot initiative in 2016? Still, as an argument for giving up in the political sphere and putting all our eggs in the judicial basket, that view is like declining to leave the house in the morning because it may rain later. Just because using the political process to gain our rights leaves us open to a future political campaign to take away our rights does not mean we avoid trying.

The gay rights movement has had its greatest success when it marries a political strategy -- in state legislatures and in Congress and at the initiative level -- with a legal strategy that uses impact litigation to sue for our rights. The strategies feed off each other, putting pressure on decision-makers in both realms: An increasingly successful political strategy gives judges cover for pro-marriage equality decisions since judges, for good reasons, are generally loathe to go too far out on a limb in controversial cases. And, a successful legal strategy empowers voters and legislators to take so-called "brave" political steps knowing they have the imprimatur of the courts.

Nor is this a choice between marriage equality in California and marriage equality nationwide. While Perry could possibly result in a merits hearing at the Supreme Court, that possibility is unlikely given the standing problems of the Prop 8 Proponents. It would seem that victory in Perry is more likely to mean the freedom to marry in the Golden State, rather than across the country.

There is, however, a deeper problem with returning to the ballot box in 2012. Should the gay community concede that its rights must be handed down by and subject to the approval of a majority of voters? My fundamental right to marry the one I love is neither incumbent upon finding a good political climate nor subject to the whims of voters whose rights have never been up for a vote. Yet, to put marriage equality on the ballot in 2012 accepts that we must beg for recognition like Oliver Twist, trembling, bowl in hand, asking for more.

Still, while a victory in 2012 -- something we have assumed for the purposes of this discussion, but an eventuality that is far, far, far from foregone -- would bring marriage equality to California before Perry, that victory may be temporary due to the fickle nature of politics. But, giving up in the political sphere hardly seems acceptable.

Also, a victory at the ballot box in 2012 would moot Perry v. Brown in all aspects. Legal "mootness" refers to a lack of a "case or controversy" -- a real dispute -- for a court to consider. With respect to federal courts, a "case or controversy" is a prerequisite for jurisdiction, i.e., to hear a case. Since a successful 2012 ballot initiative would bring marriage equality to California, there would be no point to have further legal proceedings on the issue of whether it is constitutional to deny those marriage rights -- the issue in Perry. Depending on the timing, we would never get a final decision on the future standing of proposition proponents and, more importantly, we would most certainly not get a final decision on the irrationality of any denial of marriage rights from the gay community. In that way, victory at the 2012 ballot could be seen as short-circuiting a long-term legal strategy whose ultimate and eventual goal is to obtain judicial precedent for the recognition of our fundamental right to marry nationwide.

What do you think about putting marriage equality on the ballot in 2012? This column might have you given you whiplash, as I bounced back and forth with arguments on each side. But, it is a conversation our community must have. I eagerly await your thoughts, dear Readers!

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Comments

  1. i took the EQ=CA survey and indicated that i did not want to go back to the ballot for two reasons, 1) i don't want my humanity put up for a popular vote. i'd rather not be married than go through that again and again and again. 2) the republicans are already stoking up their values voters and cultural warriors for the 2012 cycle. a ballot initiative would only fan the flames of the culture war.

    Posted by: deedrdo | Apr 6, 2011 12:34:03 PM


  2. Personally, I am sickened by the thought of putting our rights up for a vote, on the "offense," rather then the put-upon-us "defense" of the Prop 8 situation. That said, I'm more than willing to be pragmatic about it - and do whatever it takes to get us the recognition of equal marriage rights that are already ours.

    Ari, if we were to win those California rights at the ballot in 2012, would the Ninth Circuit consider Perry v. Brown moot, and dismiss it?

    Conversely, if we don't go to the ballot in 2012 ... and instead shoot for actual equal marriage rights (i.e., the federal rights that all California straight marrieds have), is there no chance (in your opinion) the Supreme Court will take up Perry v. Brown when it reaches that level?

    Posted by: Zlick | Apr 6, 2011 12:38:20 PM


  3. I think putting it up again is a great idea. It shows the other side that we are not going anywhere. We will put it up again and again, every two years until we win. Make them raise millions of dollars to fight us EVERY single year until they are just exhausted themselves. We have the momentum and passion of actually fighting for our rights. Their hate will begin to turn into apathy.

    Even if we lose again (which would be horribly demoralizing), just getting a few percentage points closer and having the debate every two years brings more people onto our side.

    Posted by: George | Apr 6, 2011 12:48:40 PM


  4. the rights of the minority are not or should not be subject to the will of the majority. the rights situation, however unfortunately, MUST wend its way through the courts.

    Posted by: jack | Apr 6, 2011 12:49:07 PM


  5. @zlick: thank you for your comment. i updated the original post to answer your question, which is important. i am sorry i forgot to include that in the first place. yes, if we win at the ballot in 2012 and Perry had yet to be decided by that point, the case would be moot and prematurely ended. there would be no case or controversy for the court to hear.

    Posted by: Ari Ezra Waldman | Apr 6, 2011 12:56:14 PM


  6. The Supreme Court decisions in Roe v. Wade and in the case out of Virginia dealing with interracial marriage (Loving v. Virginia) had nationwide effects. I don't understand why the Perry case would not also have nationwide effects.

    As we are learning from Iowa, even a state judicial decision in our favor may not last. As far as the ballot initiative, I don't think that my rights should be denied or granted by popular vote and winning in CA in 2012 is certainly not a slam dunk. Ballot initiatives that are routinely subject to judicial review prior to implementation almost seem like a waste of time. Gay Americans in ultra conservative states (the other 40) will never see equality through ballot measures, state legislatures or judiciary, so not until the US Supreme Court rules in our favor will all gay Americans gain equality.

    Posted by: Chadd | Apr 6, 2011 12:57:06 PM


  7. I'd like to see it go up for a vote. Through whatever legal/legislative channels change happens, it will only come about due to the visibility of the gay community and pressure it and its allies can exert. When Prop 8 passed, there was a lot of complacency on the part of the gay community. We lost, and now the complacency is gone. If we win, great. If we don't, the community will just grow louder and stronger.

    Posted by: Joel | Apr 6, 2011 1:00:49 PM


  8. "The rights of a minority should never be put up for a popular vote by the majority." We said it before Prop 8 and in the aftermath of Prop 8. But now we are okay with it because we think we might win? That's bullshit.

    Every time our rights go up for a popular vote--whether we win or lose--it emboldens the bigots to continue to use the ballot box to bash us. We should NOT put this issue on any ballot until every legal remedy has been exhausted.

    Posted by: peterparker | Apr 6, 2011 1:15:26 PM


  9. I would like to see it back on the ballot. We have the public opinion this time and with Obama on the ballot we can definitely pull this one out. Plus I think the President will come out for same-sex marriages during the campaign!

    Posted by: Tony | Apr 6, 2011 1:17:19 PM


  10. In your penultimate paragraph, you raise what might be considered a significant negative consequence for the broader struggle for marriage equality of a victory at the ballot box in California in November 2012: the Perry litigation would be dismissed and we would have lost our most promising vehicle, complete with a trial record very favorable to us, for advancing our case through the federal courts.

    Ultimately, I find that an insufficient reason for not moving forward with a ballot measure in 2012 if we conclude, based on polling and other considerations, that there is a high degree of likelihood that we will prevail this time. I do not find your concerns about submitting our rights to a popular vote to be persuasive in this regard. Sure, in a more perfect world our rights would be recognized and people would accept that those rights are not conditioned on the approval of a majority of the voters at any given time. That, however, is not the world in which we currently live. It was not the world yesterday, it is not the world today and, whether or not we move forward with a ballot measure in California in November 2012, it will not be the world twelve months from now. How would we accomplish anything for the principle that our rights should not be subject to a popular vote by doing nothing? At least until the conclusion of federal litigation (assuming a favorable outcome), which as you note might not happen for some years, our rights would still in fact be denied as the result of the whims of a past majority! Some victory for principle!

    I do think we need to make this decision carefully. It seems as if most prior polls have overestimated our performance when recognition of our relationships has been put to voters (in Cali in '08, in Maine and in Washington in '09, etc.) and, after all, we lost by about five points just two years ago despite a massive turnout of young voters for then-Senator Obama. No doubt you are correct that we should not take a victory at the polls for granted in 2012. Also, contrary to what some have suggested on this site and others, another defeat at the polls would harm our efforts - not irreversibly, but no doubt a defeat would be a bad thing in terms of its impact on our efforts to persuade voters and legislators in other jurisdictions and in terms of its impact on judges in the middle, who are sensitive to evolving public opinion on issues such as this.

    Having said all of this, if we conclude that we have a high degree of confidence that we can prevail in 2012, I think that we should most definitely move forward. I say this in large part because, quite the opposite of feeling that it's bad precedent to willingly submit our inalienable rights to a popular vote, I believe that, in circumstances such as these, our worldwide struggle for equality could get a boost from popular validation by the voters of California that no court victory could ever deliver. Any court decision in our favor will certainly be attacked as the work of "activist" judges usurping a role not intended for them and substituting their personal preferences for those of the populace. While such attacks reveal a woeful misunderstanding of the most important function of the judiciary in our system of government, they nonetheless have proved quite effective in the past and have even engendered backlashes against us. On the other hand, having the voters of California themselves reverse their prior verdict on this issue and sanction marriage equality would be a shot heard round the world, from Maryland to Minnesota to Denmark to France to Ireland to Uruguay. People would take note and the tide surely would have turned irreversibly.

    One final note. Concerns about 2016 need play no role in this discussion. We may ultimately conclude that we are not confident enough of victory in 2012 to put this issue back on the ballot at that time but, if we do and if we in fact prevail, the chances that Californians would again reverse themselves in the future seem remote (and, indeed, I'd worry more about 2014, given the more conservative composition of midterm election voters, than 2016). Acceptance of marriage equality will have continued to increase at the impressive pace we've seen of late and even some of those who'd been on the fence but would have voted against changing the status quo when the status quo meant discrimination would similarly opt against changing the status quo when the status quo means equality.

    Posted by: Patric | Apr 6, 2011 1:27:39 PM


  11. Ari, you are incorrect about what happens if the Ninth Circuit recognizes the Proponents' standing to appeal. The merits questions have already been fully briefed. If the Ninth Circuit finds standing, it is likely to also rule on the merits in the same order, or in any event shortly thereafter. The case would not be going back up any federal "ladder," except for the inevitable review by SCOTUS.

    Posted by: Justin | Apr 6, 2011 1:36:02 PM


  12. Aren't we headed toward an opinion on standing from the CA Supremes in November 2011? So we'll get a decision on standing from the 9th Circuit in January 2012? Do you really think SCOTUS would take up a standing issue that is essentially a single state issue, and when the Yes on 8 people have so little defense in claiming standing -- CA law provides that if ballot issue promoters want to claim the right to defend it they can put that in the language of the ballot initiative itself. Yes on 8 didn't do that. If we will know in 9 months and our odds are very good -- why announce an initiative that could undermine us before that time?

    Posted by: Chris Gable | Apr 6, 2011 1:44:46 PM


  13. RE "more importantly, we would most certainly not get a final decision on the irrationality of any denial of marriage rights from the gay community"

    Why are we eager to have SCOTUS rule on Perry? Given its present composition, our chances of a win there are not good, while time is on our side. Better to do anything we can to prevent Perry from reaching SCOTUS.

    Posted by: BillyBoy | Apr 6, 2011 2:01:47 PM


  14. I'd be concerned about the implications for the Democrats in 2012 if it was on the ballot. If the races are close, this ballot measure and the Democrats could both lose, and while the Democrats are far from perfect, they're much better on other gay issues than (most) Republicans. It could do more harm than good.

    Posted by: Daniel | Apr 6, 2011 2:19:19 PM


  15. Don't go on the ballot. This shows that the gay rights groups are not EVEN on the same page.

    But they never were and we know of all the nasty back biting that happened.

    This is all One-manupship gaming. BIG time.

    Putting it to the ballot means that forever the USA will decide it's laws by people who are not educated about issues or who have a grudge to bear will decided peoples lives.

    And to the above. If you don't as an organization have enough money to fight the Christians, you think you will win? Look what happened in IOWA. These guys did their research and the public were for gay marriage,hell some were not even bothered and this how NOM won with all their money. To relentlessly keep on confusing people that gays are bad and as Christians, they should do the right thing.

    So WRONG.

    Posted by: Rowan | Apr 6, 2011 2:25:02 PM


  16. @Ari, thanks for answering my question on one of your previous articles about not expecting them to reverse the stay.

    Question again: If the 9th Circuit in 2012 deems that Prop 8 is unconstitutional, THEN do you expect them to continue the stay? So, in 2012 if we "win", will we be able to get married or not?

    (does it matter whether it's deemed the prop 8 supporters have standing? if so, assume they don't).

    I still don't understand why Judge Walker issued the stay but I guess anyone who follows the letter or spirit of the law also wouldn't understand it.

    Posted by: me | Apr 6, 2011 2:54:56 PM


  17. @BillyBoy, you asked "why are we so eager to have the supreme court rule on perry?"

    I do feel that with the current court's composition they would rule against the constitution. But I'm hopeful that one of the conservatives will kick the bucket before then. Also, it's possible that Kennedy will have a more sensible vote.

    Posted by: me | Apr 6, 2011 3:02:32 PM


  18. "a victory at the ballot box in 2012 would moot Perry v. Brown in all aspects."

    I don't necessary agree with this statement because even if we win in 2012, the haters could strip it away again in 2014. So, until the issue of same sex marriage is ruled upon via Perry V. Brown -- there is still "controversy" because one of the core questions wouldn't yet be settled -- is it or is it not unconstitutional to have a ban on same sex marriage.

    I think there is really no harm in starting to collect signatures now for a repeal effort in 2012. Even if we do get an answer back from the 9th before, that doesn't mean it's going to go in our favor. If it doesn't, we want to have the ballot measure ready ASAP and not wait around for a signature gathering effort.


    Posted by: Jollysocks | Apr 6, 2011 3:17:37 PM


  19. Ari (or any law types):

    Say that we get this on the ballot for 2012, and the 9th Circuit issues that the proponents do have standing and that indeed prop 8 was unconstitutional before the election and then we were successful at the ballot box in November.

    I understand that the question would then be moot, but the 9th having issued a positive outcome would then in theory legalize marriage equality in all those states in the 9th circuit while mooting the question before it gets to the SCOTUS. Does this mean that we could bring equality to all 9 states plus 2 territories of the 9th circuit while still avoiding the SCOTUS?

    Posted by: michael | Apr 6, 2011 4:01:10 PM


  20. @michael: thats certainly one of many possible outcomes. thats the thing with this case, the outcomes are varied and unclear. but, the way the case was filed -- as against only two counties in California -- complicates the reach of any 9th Circuit decision outside California. but your scenario is definitely possible. more in depth explanation later... off to a meeting.

    Posted by: Ari Ezra Waldman | Apr 6, 2011 4:07:53 PM


  21. Look, unless you believe in some kind of "natural law" approach -- and the LGBT community should always be wary of any arguments as to what is or isn't "natural -- then rights necessarily emanate from an affirmative act of the polity, i.e., the enactment into positive law of a constitutional (or statutory) provision that conveys those rights. When you say you don't want our rights put up to majority vote, you're obviously relying on the fact that you think we've already been granted those rights (i.e., via the 14th Amendment or various state-constitution equivalents). But where do you think those came from? They were enacted (in the case of the US constitution) by Congress and the state legislatures; or in the case of states, usually by popular referendum.

    Put it another way: Say Perry gets up to the Supreme Court and they rule (as I suspect) that the 14th Amendment doesn't require marriage equality. If there's a proposal to put an overturning amendment before Congress and the States, will you moan about how your rights shouldn't be up to a vote? Of course not.

    There's nothing mystical about our "rights". They don't come from God. You have to fight for them, and yes, that always means ultimately in the down-and-dirty arena of politics.

    Posted by: Glenn | Apr 6, 2011 4:15:34 PM


  22. If anyone had a memory that extended beyond 48 hours, you would know that this 2012 idea is an EQCA scam. In January, Stop8.org, the folks who do the weekly Prop 8 on Youtube, contacted EQCA and asked them about a repeal effort in 2012. EQCA said that it wasn't even on the radar. Check it out at 1:25. BTW, this video was posted here on Towleroad, so it is disappointing that Andy T. can't even remember that his posts in March are directly contradicted by his posts in January.

    http://www.youtube.com/watch?v=PEYAvGT2lac&feature=channel_video_title

    Obviously, if EQCA were even half serious about a 2012 repeal effort, it would have been working diligently through 2010 to prepare - retaining signature gathering firms, fundraisers, pollsters, etc. (The need for a lot of time to prepare was the reason we didn't attempt it in 2010.)

    Yet we are to believe that now EQCA is seriously considering it? More like EQCA needs cash and is floating this in order to get people excited about a big battle. After they have banked a few million, they'll announce that it is better to wait to see how the litigation plays out.

    Posted by: Brianna | Apr 6, 2011 4:19:54 PM


  23. I understand people's dislike/disgust of having voters and legislators decide civil rights issues but that's what we do in the United States. We're a democracy, we vote on things. And how is having a judge or set of judges decide our fate better?

    What's more, the legal strategy in Perry strikes me as little more than Ted Olsen saying, "Justice Kennedy is my friend, I think he'll vote for me." There is not a strong line of Supreme Court decisions that mandate a pro-gay outcome in the case.

    There are only 5 states that permit same-sex marriage and only 5 more allow civil unions. We've lost several high profile cases, legislative votes and ballot initiatives. We are slowly and consistently advancing, but there is not momentum enough to say to the justices that our position will necessarily prevail nationwide and a contrary decision will be another Dred Scott or Bowers v. Hardwick.

    We can't get Congress to pass ENDA or repeal DOMA. Why do we think that the Court will overturn same-sex marriage bans in more than 35 states. That's a very sweeping decision for a Court that has been very cautious in recent years.

    Posted by: Brian | Apr 6, 2011 4:21:20 PM


  24. To add to your whipshawed feeling, remember that the CA S.Ct. decision upholding Prop 8 went out of its way to uphold CA's domestic partnership laws and stated they are in all ways equivalent to marriage. All Prop 8 did, according to the Court, was prohibit same sex committed partners from legally using the word marriage.

    Now, that's still not a good thing because separate is not equal.

    But given the $80 million or more needed to wage a ballot initiative, do we want to focus our money right now on winning back this word? Or do we want to focus on fighting DOMA, on electing pro-equality legislators to make that happen? To fighting in the Courts?

    Basically, one of the questions is thinking about how important is this particular fight right now compared with the others set before us.

    Posted by: Bob M | Apr 6, 2011 4:41:06 PM


  25. I think we very much need the Perry case or something similar to go to the current SCOTUS. Anthony Kennedy wants to retire but will only do so when a republican is president. As the author of both the Lawrence and the Romer decisions, he has shown leadership in his willingness to see us as equal in the eyes of the law. he is not likely to be replaced by someone as friendly. He was nominated at a time when Reagan was able to put social conservatives in their place when necessary. The current GOP refuses to ever do this, and they will ensure a very conservative judge replaces Kennedy.

    At the risk of hearing Maggie and Co. continue to peddle garbage about judicial activism, I think we should NOT put it on the 2012 ballot. As someone who volunteered during the 08 campaign, I was very turned off by what it entailed...begging fellow citizens for my equality. I think we need to use this as an opportunity to educate Americans that the Constitution guarantees everyone that some things don't go up for a popular vote. I'd even donate money to a campaign that featured ads that explained to voters why we are pursuing this through the courts, and what the implications are for everyone if the equal protection clause can be nullified by the majority. In this approach, we are able to educate and convince Americans while not giving in to submitting our rights to a popular vote.

    Posted by: Doug | Apr 6, 2011 4:48:58 PM


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