It's not really so important that Prof. Kenneth Miller is not as much of an expert on gay political power as the defense was hoping. The general landscape is obvious enough. We have garnered more support over time than we started with, and working with our allies (particularly in California) have been able to get laws passed in the legislature to provide some basic and necessary protections.
But we've also lost two elections here on gay marriage, which fit right alongside the 29 other elections we've lost in states across the country.
What Prof. Miller wanted to avoid, and what David Boies steered him directly into on cross-examination is the difference between legislative support and electoral losses. Miller actually does have cogent thoughts about that difference, and unfortunately for the defenders of Prop. 8, they are at the core of our case.
Here is what Prof. Miller has written:
"In allowing proponents to eschew compromise and accommodation of competing interests, the initiative process fosters polarization rather than consensus building."
That single sentence expresses what Karl Rove knew and deployed so well on behalf of his boss, a tactic that continues to have life in it. The residual prejudices about homosexuality are still potent within many people, even if they are not publicly articulated. Many legislators have identified and abandoned those outdated notions, and even the ones who retain them (or cynically wish to exploit them) don't often say them out loud. (Here's a good example of why they don't)
It is not necessary to announce anti-gay prejudice in public to appeal to it, though. In fact, an election on gay rights (and specifically marriage), polarizes voters by its very nature, and undermines the consensus building that gays have been patiently working on for decades. The fact that the proponents of anti-gay marriage initiatives don't openly proclaim such motives shouldn't be very surprising.
The trick is to take the focus off of their own motives. Because Prop. 8 was, in fact, dominated by religious groups, its defenders have insisted that opposition to Prop. 8 must therefore be anti-religious. But that leaves out something important. Religion can be a perfectly adequate motivation for any individual citizen's vote. Voters can cast their ballots for good reasons, bad reasons or no reasons at all. They can flip a coin, if they choose.
But courts have an obligation to determine (on behalf of all of us in the aggregate) whether a law is supported by at least one good, constitutionally sufficient reason. And our secular courts can't accept religious reasons, or else they would find themselves intruding into theological disputes within and among religions.
It is that fact - that courts can't accept religious reasoning - that is made to appear to be anti-religious. To be fair, there is no shortage of anger among gays and gay supporters about how religions treat homosexuals. But it is not our side that has to defend the law.
That leaves non-religious reasons as the only ones the court can consider. This is the task the Prop. 8 defenders are struggling with. There is ample evidence of Prop. 8's leadership baiting voters behind the scenes with polygamy, pedophilia (and more general fears about children), bestiality, religious prejudice, etc. Again, like them or not, those are reasons any individual voter can find adequate. But aside from prejudice and theological beliefs, what reasons support the majority favoring itself and disfavoring an extremely small minority, particularly in the context of something as personal and profoundly important as the decision whether to marry one other person?
Prof. Miller's observation shines a glaring light on the reason that, while gays have been successful in the legislative arena, where compromise and consensus are possible, their power dissipates in elections over marriage equality. If there is a good reason to discriminate, the court can accept it. But Prop. 8's defenders do have to provide something the court can rely on. The next couple of days will give them that opportunity.
8 Comments for “The Power And The Glory”
posted by Regan DuCasse on
As evidence of the push to no longer donate to the DNC or Dem candidates shows the neglect of the party and it’s campaign promises.
Political visibility is very different from actual and applied power.
For each step forward, there are two or three back.
And at the social level, that powerlessness is even more accute when it comes to making decisions and provisions for a gay couple’s loved ones.
Non marital status is an effective tool for exploiting the vulnerability of gay people.
From losing custody of children, to losing property and other financial support for surviving partners is real and not hypothetical conjecture.
Non marital status is essentially used gay adults the way color and gender has been before to maintain otherwise productive citizens in an intractable caste system of all the responsibility, but with none of the rights and protections.
posted by Throbert McGee on
“In allowing proponents to eschew compromise and accommodation of competing interests, the initiative process fosters polarization rather than consensus building.”
Um, what? I was under the impression that in the case at hand, it was legislatively-created Same-Sex Marriage that had in fact polarized California, and the practical effect of the Prop 8 initiative was to restore Same-Sex Civil Unions as the compromise preferred by most voters.
posted by North Dallas Thirty on
Prof. Millerâs observation shines a glaring light on the reason that, while gays have been successful in the legislative arena, where compromise and consensus are possible, their power dissipates in elections over marriage equality.
The interesting thing is that California’s robust initiative and amendment process exists primarily because legislatures demonstrated that they could be easily corrupted and purchased — or, as in the case of the current Legislature, balkanized by careful gerrymandering.
The gay and lesbian community has figured out what the railroads did a century ago — it is easier and less expensive to purchase the vote of one politician who can overrule thousands than it is to build consensus with the thousands. Unfortunately for them, they’ve triggered the same reaction, which is for the people to reassert their constitutional right to overrule their representatives in the three branches.
Representative government in our country is a convenience, not a admittance that voters are too stupid to make up their own minds and need an oligarchy of their betters to make decisions for them. The laziness and arrogance of the gay-sex marriage movement in trying to bypass the voters and then nullify the outcomes does nothing but to make matters worse.
posted by Bobby on
“Non marital status is an effective tool for exploiting the vulnerability of gay people.”
—That’s specially true in the case of lesbians that become ex-gay and want to keep their former partners away from their biological babies.
Gays simply have to have more paperwork than everyone else, including wills, powers of attorneys, second-parent adoption, etc.
posted by Throbert McGee on
That’s specially true in the case of lesbians that become ex-gay and want to keep their former partners away from their biological babies.
Um, has the scenario you describe ever actually happened?
If you’re thinking about the Miller/Jenkins custody fight in Virginia, it would appear that you are confused about the facts of the case. (Miller, the “ex-gay” woman, is the biological mother of the child, and lost custody to Jenkins, who still identifies as a lesbian, and does not have a biological connection to the kid.)
posted by Bobby on
“If you’re thinking about the Miller/Jenkins custody fight in Virginia, it would appear that you are confused about the facts of the case. (Miller, the “ex-gay” woman, is the biological mother of the child, and lost custody to Jenkins, who still identifies as a lesbian, and does not have a biological connection to the kid.)”
—Yes, and it’s not the first time that happens. As for Jenkins, she’s as much of a mother as that biological ex-gay whore. You think being a mother is just breeding a baby? That poor woman changed diapers and did all the roles of a mother. That’s why second parent adoption plus a power of attorney is so important.
You know what? I hope that ex-gay whore finds herself a nice abusive husband, the kind that things raping his wife when he wants sex is perfectly acceptable. People like her deserve the worst.
posted by Regan DuCasse on
That’s why marriage is so important, Bobby. Too often the paperwork you’re talking about is expensive beyond the means of many couples, and there is no guarantee wills or POA will be enforced.
In fact, they won’t be in Virginia. That law was passed specifically against gay couples to remove any possible protections.
And why Miller fled to that state, so that her ex partner wouldn’t have any legal recourse.
A marriage license is understood and respected, no matter where you are in the entire world.
DP’s, cu’s, POA’s, wills and so on aren’t worth the paper they are printed on, and unfortunately for so many, such a thing isn’t found out until a time of crisis and profound vulnerability.
posted by BobN on
If you’re thinking about the Miller/Jenkins custody fight in Virginia, it would appear that you are confused about the facts of the case. (Miller, the “ex-gay” woman, is the biological mother of the child, and lost custody to Jenkins, who still identifies as a lesbian, and does not have a biological connection to the kid.)
Yeah, and it only took hundreds of thousands of dollars in legal expenses, five years of separation from the child, and the bio-mom and kid are still on the lamb.
Them’s equal rights.