The Volokh Conspiracy - Losing California:

Last night I stood in the heart of San Francisco's Castro district, the epicenter of the gay-rights movement. Around me were thousands of people cheering and dancing for Barack Obama's victory and for the promise it brings gay America. Meanwhile, on a large screen broadcasting local news it became more apparent with every passing hour that 97% of Californians had voted on the marriages of the other 3%, and a majority had found them wanting.

Over the next few days there will be a strong temptation among gay-marriage supporters to put on a brave face. It will be noted that the vote was close, 52%-48% (with absentee ballots still uncounted), which is both heartbreaking because it was winnable now and encouraging because it is winnable soon. We narrowed a gap that stood at 22% eight years ago, when Californians last voted to ban gay marriage, to just 4% yesterday. "Don't worry about it," I was told by one reveler who noticed I wasn't exactly joining in the celebration swirling around me last night, "this will be back on the ballot again as 'Proposition Whatever' and we'll win."

Others are banking on a judicial end-around either through federal or state courts to overturn Prop 8. Gloria Allred, one of the attorneys spearheading the litigation that ended in the California Supreme Court marriage decision in May, has already imperiously announced she will file a lawsuit premised on what she's calling a "new and controversial legal argument" for why this constitutional amendment is "unconstitutional." Can't wait to see that one.

Civil rights movements, we are often and correctly reminded, are not linear projections moving inevitably into the future. They take two steps forward and one step back. Last night, we will be told, was just a "step back" in a long fight. Besides, we are often reminded that the trajectory is in our favor, with attitudes changing very rapidly, especially among younger voters who simply do not understand why anyone would oppose letting gay couples marry.

There is something to all of this. I have always believed the fight for gay marriage would be decades long: a few initial judicial victories to get the ball rolling, accompanied by a fierce backlash, and then a long slog through state legislatures (and sometimes courts). In the next couple of years, I expect we will see full recognition of gay marriage by the state legislatures in New Jersey and New York, where Democrats took the senate last night for the first time in decades. I can foresee in the next decade gay marriage in most if not all of New England and some of the other twenty states that haven't constitutionally banned it. California was a big prize, and would unquestionably have hastened things politically and legally, but there are others.

But the narrow margin of yesterday's loss masks some hard facts for the gay-marriage movement. Counting the losses for gay marriage in Arizona and Florida yesterday, we are now 0-30 in ballot fights. In California, we lost under circumstances that were as favorable to our side as they are likely to be for some time. We lost in deep blue territory on a blue night, when Obama carried the state by an astonishing 61% (running ahead of the opposition to Prop 8 by more than 13%). We lost despite being on the "no" side in a ballot fight, with the built-in advantage that gives you among those who vote "no" on everything out of understandable proposition fatigue. We lost despite the state attorney general changing the ballot title to reflect that it "eliminates rights," something most Americans don't like to do no matter the subject.

All of this suggests to me that actual support for gay marriage in California is something less than the 48% vote we got. My best guess is that actual electoral support for gay marriage in California is somewhere in the low 40s, when you factor out ballot fatigue, the blue tide, and the favorable ballot title -- all of which you would have to presume in trying to reverse Prop 8 in a future initiative requiring an actual "yes" to gay marriage. And, of course, to reverse Prop 8 we'll have to raise lots of money and put together a petition drive just to get to the ballot. My estimate is that last night's loss -- barring federal or state judicial intervention to undo Prop 8, which I regard as unlikely -- means there will be no gay marriage in California for at least a decade.

Something else, however, concerns me even more than whether particular tacticians can manipulate a vote by a sufficient few percentage points to eek out a narrow win in the next few years in California and other states. That something else is much deeper.

Over the past few days I've volunteered at various sites in the Bay Area trying to get people to come out and vote against Prop 8. This included speaking at a rally, distributing literature, and holding up signs to passing motorists. While I got an overwhelmingly favorable reception, not surprising for the Bay Area, I saw firsthand an angry and ugly underbelly of the opposition to gay marriage. I was called a "sicko," had the Bible cited to me more than once, was asked whether I'd want my "own child to be one," and was told that "they" molest lots of children, among other things.

The reality is that to a very large part of the country, and even in the bluest parts of the bluest states, homosexuality is not seen as normal and gay relationships are not seen as healthy and contributing to a society's well-being. Whether that's because of religion or because of the "ick" factor or some combination of the two, it doesn't much matter. It's there and it's only grudgingly and slowly giving up ground. This is especially true among blacks, some 70% of whom voted for Prop 8 yesterday even as they overwhelmingly supported Barack "God is in the mix" Obama. (Whites and Latinos narrowly opposed Prop 8.) It's also true of several major religious groups.

The smartest leaders of the gay-marriage movement know all of this. That's why gays were invisible in the No on 8 campaign. The literature I handed out talked in generalities about "discrimination" and about how it was "wrong" and "unfair" to take away marriage from some unnamed group of people. I scoured the literature and found no reference to "gays." The No on 8 ads featured almost no gay couples, and especially no gay-male couples, who are especially repugnant to many people according to polls. In one ad, Senator Feinstein was even agnostic about gay marriage itself ("However you feel about marriage . . . ").

I'm not faulting the No on 8 campaign for this strategy. I believe it was the only strategy that had any chance of winning under the circumstances. If the campaign had frankly presented the case for gay families and marriage we would have lost yesterday by a much larger margin. No on 8 leaders were trying to dislodge in five months what people have been taught for a lifetime about homosexuals and marriage. They were also trying to move a small group of people who don't know what they think about gay marriage. They raised about $40 million, a record for a social-issue proposition fight, and about on par with the largely Mormon-driven fund-raising on the other side. Given the size of the task, it's amazing that No on 8 nearly succeeded.

I also don't fault the California Supreme Court for yesterday's loss. Prop 8 was going to be on the ballot yesterday no matter what the court did, and, aside from the merits of their decision, the justices arguably helped the cause by setting a context in which a "fundamental right" was being "eliminated." Despite the ads by the Yes on 8 campaign trying to stoke populist resentment of activist judges, I doubt that many people who otherwise supported gay marriage voted for Prop 8 just to smite the arrogant tyrants in black robes.

Mostly, my heart breaks for the gay couples and their children who had a five-month window in which their families could celebrate the ultimate expression of commitment and love our culture knows. There was nothing academic about any of this for them. They don't really care whether they get to marry by court decree, or legislation, or proposition. They simply want the protection, security, and support they believe marriage gives them. They want their families and communities to understand how much their relationships mean and how fiercely they will fight to protect the children they love. Over the past few days, I've fielded questions from some of them looking for some reassurance about what happens now, but I do not know what is going to become of their marriages. (See Eugene's interesting speculation on that topic.) Today, they have no idea whether they have just been divorced by their fellow citizens.

On Sunday, I spoke to a rally of about 100 of them in Vallejo. It was held in a park bordered by rolling and largely barren, brown hills, which funneled a chilly wind onto us. The park was empty. It was all gay and lesbian couples, many of them with young children. Some had gotten married already and others were planning to do so before the vote, just in case. They were wearing red and carrying signs. They were full of hope. They would be heading out that day to form a human sign constituting the words "No on 8" by the side of the freeway, trying to capture the attention and hearts of thousands of passing motorists in a state of 40 million people. It seemed an impossibly small group taking on a lot for themselves.

We are going to get gay marriage in this country, but that day is now a little farther away.

	[Dale Carpenter, November 5, 2008 at 3:18pm] Trackbacks Losing California: Last night I stood in the heart of San Francisco's Castro district, the epicenter of the gay-rights movement. Around me were thousands of people cheering and dancing for Barack Obama's victory and for the promise it brings gay America. Meanwhile, on a large screen broadcasting local news it became more apparent with every passing hour that 97% of Californians had voted on the marriages of the other 3%, and a majority had found them wanting. Over the next few days there will be a strong temptation among gay-marriage supporters to put on a brave face. It will be noted that the vote was close, 52%-48% (with absentee ballots still uncounted), which is both heartbreaking because it was winnable now and encouraging because it is winnable soon. We narrowed a gap that stood at 22% eight years ago, when Californians last voted to ban gay marriage, to just 4% yesterday. "Don't worry about it," I was told by one reveler who noticed I wasn't exactly joining in the celebration swirling around me last night, "this will be back on the ballot again as 'Proposition Whatever' and we'll win." Others are banking on a judicial end-around either through federal or state courts to overturn Prop 8. Gloria Allred, one of the attorneys spearheading the litigation that ended in the California Supreme Court marriage decision in May, has already imperiously announced she will file a lawsuit premised on what she's calling a "new and controversial legal argument" for why this constitutional amendment is "unconstitutional." Can't wait to see that one. Civil rights movements, we are often and correctly reminded, are not linear projections moving inevitably into the future. They take two steps forward and one step back. Last night, we will be told, was just a "step back" in a long fight. Besides, we are often reminded that the trajectory is in our favor, with attitudes changing very rapidly, especially among younger voters who simply do not understand why anyone would oppose letting gay couples marry. There is something to all of this. I have always believed the fight for gay marriage would be decades long: a few initial judicial victories to get the ball rolling, accompanied by a fierce backlash, and then a long slog through state legislatures (and sometimes courts). In the next couple of years, I expect we will see full recognition of gay marriage by the state legislatures in New Jersey and New York, where Democrats took the senate last night for the first time in decades. I can foresee in the next decade gay marriage in most if not all of New England and some of the other twenty states that haven't constitutionally banned it. California was a big prize, and would unquestionably have hastened things politically and legally, but there are others. But the narrow margin of yesterday's loss masks some hard facts for the gay-marriage movement. Counting the losses for gay marriage in Arizona and Florida yesterday, we are now 0-30 in ballot fights. In California, we lost under circumstances that were as favorable to our side as they are likely to be for some time. We lost in deep blue territory on a blue night, when Obama carried the state by an astonishing 61% (running ahead of the opposition to Prop 8 by more than 13%). We lost despite being on the "no" side in a ballot fight, with the built-in advantage that gives you among those who vote "no" on everything out of understandable proposition fatigue. We lost despite the state attorney general changing the ballot title to reflect that it "eliminates rights," something most Americans don't like to do no matter the subject. All of this suggests to me that actual support for gay marriage in California is something less than the 48% vote we got. My best guess is that actual electoral support for gay marriage in California is somewhere in the low 40s, when you factor out ballot fatigue, the blue tide, and the favorable ballot title -- all of which you would have to presume in trying to reverse Prop 8 in a future initiative requiring an actual "yes" to gay marriage. And, of course, to reverse Prop 8 we'll have to raise lots of money and put together a petition drive just to get to the ballot. My estimate is that last night's loss -- barring federal or state judicial intervention to undo Prop 8, which I regard as unlikely -- means there will be no gay marriage in California for at least a decade. Something else, however, concerns me even more than whether particular tacticians can manipulate a vote by a sufficient few percentage points to eek out a narrow win in the next few years in California and other states. That something else is much deeper. Over the past few days I've volunteered at various sites in the Bay Area trying to get people to come out and vote against Prop 8. This included speaking at a rally, distributing literature, and holding up signs to passing motorists. While I got an overwhelmingly favorable reception, not surprising for the Bay Area, I saw firsthand an angry and ugly underbelly of the opposition to gay marriage. I was called a "sicko," had the Bible cited to me more than once, was asked whether I'd want my "own child to be one," and was told that "they" molest lots of children, among other things. The reality is that to a very large part of the country, and even in the bluest parts of the bluest states, homosexuality is not seen as normal and gay relationships are not seen as healthy and contributing to a society's well-being. Whether that's because of religion or because of the "ick" factor or some combination of the two, it doesn't much matter. It's there and it's only grudgingly and slowly giving up ground. This is especially true among blacks, some 70% of whom voted for Prop 8 yesterday even as they overwhelmingly supported Barack "God is in the mix" Obama. (Whites and Latinos narrowly opposed Prop 8.) It's also true of several major religious groups. The smartest leaders of the gay-marriage movement know all of this. That's why gays were invisible in the No on 8 campaign. The literature I handed out talked in generalities about "discrimination" and about how it was "wrong" and "unfair" to take away marriage from some unnamed group of people. I scoured the literature and found no reference to "gays." The No on 8 ads featured almost no gay couples, and especially no gay-male couples, who are especially repugnant to many people according to polls. In one ad, Senator Feinstein was even agnostic about gay marriage itself ("However you feel about marriage . . . "). I'm not faulting the No on 8 campaign for this strategy. I believe it was the only strategy that had any chance of winning under the circumstances. If the campaign had frankly presented the case for gay families and marriage we would have lost yesterday by a much larger margin. No on 8 leaders were trying to dislodge in five months what people have been taught for a lifetime about homosexuals and marriage. They were also trying to move a small group of people who don't know what they think about gay marriage. They raised about $40 million, a record for a social-issue proposition fight, and about on par with the largely Mormon-driven fund-raising on the other side. Given the size of the task, it's amazing that No on 8 nearly succeeded. I also don't fault the California Supreme Court for yesterday's loss. Prop 8 was going to be on the ballot yesterday no matter what the court did, and, aside from the merits of their decision, the justices arguably helped the cause by setting a context in which a "fundamental right" was being "eliminated." Despite the ads by the Yes on 8 campaign trying to stoke populist resentment of activist judges, I doubt that many people who otherwise supported gay marriage voted for Prop 8 just to smite the arrogant tyrants in black robes. Mostly, my heart breaks for the gay couples and their children who had a five-month window in which their families could celebrate the ultimate expression of commitment and love our culture knows. There was nothing academic about any of this for them. They don't really care whether they get to marry by court decree, or legislation, or proposition. They simply want the protection, security, and support they believe marriage gives them. They want their families and communities to understand how much their relationships mean and how fiercely they will fight to protect the children they love. Over the past few days, I've fielded questions from some of them looking for some reassurance about what happens now, but I do not know what is going to become of their marriages. (See Eugene's interesting speculation on that topic.) Today, they have no idea whether they have just been divorced by their fellow citizens. On Sunday, I spoke to a rally of about 100 of them in Vallejo. It was held in a park bordered by rolling and largely barren, brown hills, which funneled a chilly wind onto us. The park was empty. It was all gay and lesbian couples, many of them with young children. Some had gotten married already and others were planning to do so before the vote, just in case. They were wearing red and carrying signs. They were full of hope. They would be heading out that day to form a human sign constituting the words "No on 8" by the side of the freeway, trying to capture the attention and hearts of thousands of passing motorists in a state of 40 million people. It seemed an impossibly small group taking on a lot for themselves. We are going to get gay marriage in this country, but that day is now a little farther away.