The California Supreme Court's decision to uphold Proposition 8, last November's successful initiative against same-sex marriage is all the more tragic in that the initiative never should have passed in the first place.
California has a long history of initiatives, dating back to the Progressive era efforts to smash special interest corporate stranglehold -- principally in the form of the railroads -- over state government. But, while still a useful tool in many respects, initiatives have become another way to railroad issues in the Golden State, and have also played a major role in the hamstringing of fiscal policy state government.
Bringing it back to the example at hand, Californians in 1964 passed an initiative to block landmark "fair housing" legislation to end discrimination by landlords and property owners who refused to rent or sell to African Americans. The initiative, which amended the state constitution to empower discrimination, passed with a whopping 65% of the vote. But it was overturned three years later by the U.S. Supreme Court.
Similarly, we know that in the not terribly distant past, some state electorates would have voted in favor of far more overt forms of racial segregation, further enshrining so-called "Jim Crow" laws as their legislators had already done.
So let's not kid ourselves about the sort of law we are talking about, nor about the ultimate vectors of history.
The right to same-sex marriage will, in the end, win out. It's the getting there that is messy. And it need not have been as messy as the passage of Prop 8, and its expected upholding by the California Supreme Court, has made it. (Fortunately, the 18,000 same-sex marriages legally carried out under the short-lived law will stand.)
Ironically, it was this very court that granted the right of same-sex marriage just last year.
Overturning an earlier anti-gay marriage initiative, Chief Justice Ron George, a Republican, wrote in his majority opinion: "An individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon an individual's sexual orientation. ... An individual's sexual orientation - like a person's race or gender - does not constitute a legitimate basis to deny or withhold legal rights."
The state Supreme Court's decision fueled a right-wing drive to enshrine opposition to same-sex marriage in California's constitution.
Gay marriage opponents got a huge gift immediately from San Francisco Mayor Gavin Newsom's comments. Newsom had enraged top national Democrats, including Senator Dianne Feinstein and Senator John Kerry, the Democratic presidential nominee, by unilaterally declaring same-sex marriage lawful in San Francisco in the midst of the 2004 presidential race. Though it was a move that was predictably easily overturned, national Republican strategists credited the furor it caused with playing a propulsive role in turning out huge numbers of fundamentalist voters in Ohio, the lynchpin of George W. Bush's 2004 re-election.
Last spring, Newsom delighted the proponents of what became Proposition 8 by delivering a gloating set of remarks.
"By the way, as California goes, so goes the rest of the nation," he said. "It's inevitable. This door's wide open now. It's gonna happen. Whether you like it or not. This is the future. And it's now."
The foolish remarks helped galvanize religious conservatives around the country, and they poured millions into the California campaign. It also formed the cornerstone for the Yes on 8 ad campaign.
A few weeks before the election, with opponents of Prop 8 fighting back against distracting assertions that the right to same-sex marriage means that "homosexuality" will be promoted in the public schools, Newsom presided over the same-sex wedding of a first grade teacher at San Francisco City Hall. 18 of her students were on hand to toss rose petals and blow bubbles on their just married teacher and her new wife.
The Yes on 8 forces had a field day with this, successfully pushing back against new No on 8 ads.
When Yes on 8 adman Frank Schubert swept the top awards in early April of the American Association of Political Consultants, he was asked how the Yes on 8 campaign came from 14 points back to win. He replied that they were disciplined in their messaging (which means they worked hard to keep the overt hatred of many campaign supporters out of view), they had huge support from some big churches, and "We had a gift from God: Gavin Newsom."
They also had help from a confused No on 8 campaign.
I was much more focused last year on the presidential race around the country. But I followed what No on 8 was doing and watched the ads and wondered why the campaign, in movement style, was more focused on extolling the virtues of the gay, lesbian, and transgender communities and less focused on running a campaign to defeat a mean-spirited initiative that took away human rights.
The appropriate frame was ready-made.
The state Supreme Court, in an opinion written by a prominent Republican, had determined the right to same-sex marriage to be a fundamental right. The state's attorney general, former Governor Jerry Brown -- in a move that caused Yes on 8 backers to scream bloody murder -- determined the language on the ballot, saying that Prop 8 would take away the right to same-sex marriage.
Anything that takes away an existing right is highly suspect to voters.
Very late in the day, after the "Whether you like it or not" ads caused the opponents' lead in the polls to vanish, new consultants came in to run a good "No" campaign, shooting down as well the distracting argument that the right to same-sex marriage means lifestyle promotion in the schools. Then came the wedding at San Francisco City Hall, blowing up the issue again.
There were other problems.
For his part, Governor Arnold Schwarzenegger, pro-gay rights throughout his career but a two-time vetoer of gay marriage legislation (citing the anti-gay marriage initiative which passed earlier in the decade), came out against Prop 8. But he didn't campaign up and down the state against it, instead focusing his energies on his second initiative to take redistricting out of the hands of the Legislature. His reasoning? He didn't want to turn off Republicans who might vote for his initiative, which did narrowly pass this time.
Then there was Barack Obama, who opposed Prop 8 but also, formally at least, opposed same-sex marriage. Making an all-out effort to carry red states, at which he was notably successful, he didn't want to rock the boat of his own electoral strategy. So, even though Obama carried California by a crushing 61% to 37%, he did little against Prop 8.
Both Obama and Schwarzenegger authorized their appearances in a last-minute TV ad against Prop 8. Which for a time, with other moves, looked as though it might be enough.
But Obama's stated opposition to same-sex marriage showed up heavily in appeals targeted to the African American and Latino communities, which voted heavily for him but had problems with same-sex marriage.
And so Prop 8 passed and gay and lesbian rights groups and Brown intervened against it with the California Supreme Court, with differing arguments.
The rights groups argued on more technical grounds, that Prop 8 was not a constitutional amendment but a more sweeping constitutional revision, which under California law, can only be placed on the ballot with a two-thirds vote by the legislature.
Brown argued that the right to same-sex marriage is derived from inherent individual rights already enshrined in the constitution. Which is essentially the basis upon which the court made its decision last year granting the right of same-sex marriage.
Brushing aside the technical arguments, the court didn't see things that way in its new opinion, and instead chose not challenge the initiative power.
Who knows what comes next?
A few other states have lately legalized same-sex marriage. Polling numbers are generally rising in favor of equality. But it's still a close and messy call. Even in New York, a Quinnipiac poll less than two weeks ago showed a deadlock, with 46% in favor and 46% opposed. More ominously, there was a sharp racial divide. While white voters very narrowly approve of gay marriage, 47% to 45%, African American voters are strongly opposed, 55% to 37%. Predictably, Democrats are strongly in favor and Republicans are strongly opposed. But independents are split, 46-45.
In New York, as in national polls, support for same-sex marriage is up sharply over what it was five years ago.
The right to same-sex marriage is virtually inevitable. The generational divide on the issue makes this clear. Younger voters are much accepting than are older voters, just as they were much more accepting of the idea of a relatively young and seemingly untried black president.
But a great many people are afraid of change, and of a future that does not look like what they have known, even in California, a state that historically has been all about the future.
What Prop 8 tells us is how easy it is to use mistakes to block change, no matter how inevitable that change may ultimately prove to be.