Carpenter: Prop 8 Lawsuit Bad for Equality

Carpenter: Prop 8 Lawsuit Bad for Equality August 26, 2011

Dale Carpenter, a proponent of marriage equality and law professor, makes a very interesting argument that the legal challenge to California’s Prop 8 that banned same-sex marriage has — so far — done more harm than good for the cause of equality. His main argument is that the trial has diminished efforts to affect change through non-legal means, particularly by putting Prop 8 back on the ballot in 2012 and trying to repeal it through the democratic process. He writes:

That leads to the second consideration about the cost of Perry – delay in effecting political change. In 2008, when voters approved Prop. 8, gay-marriage supporters in California suffered a terrible defeat in what seemed like a winnable ballot fight. It was just a matter of time, they vowed, before they would put the issue back before the voters and reverse Prop. 8. The November 2010 election was the next opportunity, but after considerable internal debate, that date was dismissed as premature except by the most aggressive activists. An attempt to gather signatures for a 2010 repeal fizzled when donors scoffed at the idea.

Attention turned to 2012, when President Obama would be back on the ballot, turnout would be high, and the conditions would be better for repealing Prop. 8.But now there was another problem. Under the best conditions, qualifying an amendment for the ballot, waging a sophisticated campaign in several major media markets, reaching voters in a state with forty million inhabitants, and getting a majority of them to vote “yes” for gay marriage, would require thousands of volunteers, a sophisticated campaign organization, and millions of dollars in donations.

Yet the Perry litigation has sapped enthusiasm for a 2012 repeal of Prop. 8. Large donors, essential to any such effort, will not give because they expect that courts will hold Prop. 8 unconstitutional, bringing gay marriage back to the state and perhaps to the entire country. (And even if savvy donors don’t believe Perry will ultimately be successful in the courts, the existence of the litigation is a good excuse to hold off.) Why spend the money when courts may well take care of the problem? They have adopted a wait-and-see approach: we’ll see what happens and then consider whether to donate. Some of these donors have chosen to fund the litigation rather than a repeal campaign. Some are simply staying on the sidelines.

As the Perry case has begun to drag out, now involving the California Supreme Court and focusing on preliminary issues like standing, the delay is proving deadly to any 2012 ballot fight. The voter signatures to qualify an amendment to the ballot would have to be gathered in early 2012, which means that a campaign structure would have to be put in place and partially funded before then. Since there is no chance of a definitive resolution of the case before early 2012, there is now very little chance that there will be a serious repeal effort in the fall of 2012.

That means that a repeal would have to be put off until 2014, by which time we might have some resolution of the litigation. If the litigation is unresolved, there would be additional pressure for delay by large donors. If the litigation is successful (at least in bringing back SSM to California), then there’s no need for a campaign, of course. But suppose the litigation fails, either in the Ninth Circuit or at the Supreme Court. What then? A judgment might plausibly be made that a mid-term election is not the best time to bring gay marriage back to the ballot and that the risk of a second loss in California, which would be devastating, is too great. At that point, the next window of election opportunity would be 2016, a full eight years after the passage of Prop. 8. Additionally, a defeat in the courts would cast a pall over post-litigation political efforts, weakening the morale of gay-marriage supporters and undermining whatever persuasive power might be left to the constitutional-rights argument.

That’s a powerful argument. I do think, however, that Minnesota is going to build some momentum for such political efforts by rejecting a referendum to ban same-sex marriage next year. That may change this calculation, though the reality of the big money donors continuing to keep their powder dry in California probably remains in place.

Carpenter does acknowledge that his position may be valid for now but rendered irrelevant by future developments:

he qualifications to that conclusion are important. “So far” recognizes the early and tentative stage of the contest. The case may yet result in, say, a Supreme Court victory declaring a federal constitutional right to marriage for same-sex couples. Whatever one thinks of the constitutional arguments for SSM, a Supreme Court mandate would advance the cause by years, maybe decades, as compared to a state-by-state slog through places like Mississippi, which voted to ban gay marriage by eighty-six percent to fourteen percent just seven years ago. Moreover, a Supreme Court victory could be obtained at this point with little fear of a federal constitutional amendment reversing it. The public has come too far in supporting SSM for opponents to be able to muster super-majorities in Congress and three-quarters of the states against it. There would be a few years of drama after such a victory, but it would die off given sufficient time, as it has everywhere else.

“On balance” recognizes that some good has come from the Perry litigation. It’s a good thing for gay marriage to be seen as the bipartisan and ultimately conservative cause it is, and Ted Olson’s advocacy has helped with that. The district court opinion in Perry, by now-retired Judge Vaughn Walker, was a very fine compendium of the arguments for gay marriage as a matter of policy. For those who paid attention to it, the trial showed how lopsided the public-policy arguments and evidence have become. The poverty of anti-SSM argumentation has likewise been evident in recent legislative debates about it, in which legislators supporting SSM have been vocal and articulate while legislators opposing it have been almost completely silent, as if embarrassed.

Either way, I strongly believe that marriage equality is all but inevitable in this country. It’s just a question of when, not if. And regardless of the situation in California, I believe 2012 marks the turning of the tide against efforts to pass anti-equality legislation by popular vote.

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