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After the Gay-Marriage Debacle, Activists Rethink Tactics
2008-11-11
The fight over gay marriage is not over in California, or anywhere else in the U.S. Street protests dragged into the weekend in Los Angeles and other Golden State cities, and legal challenges are already asking the California Supreme Court to overturn the Nov. 4 statewide vote that made same-sex marriage in California not only illegal but unconstitutional. On Sunday, gay-marriage supporters got an unexpected boost from Republican governor Arnold Schwarzenegger. The term-limited governor had always opposed the amendment but had not campaigned against it or come out in support of gay marriage. "They should never give up," he said on CNN, referring to proponents of gay marriage. "They should be on it and on it until they get it done." He called the Election Day vote against same-sex marriage "unfortunate, obviously, but it's not the end. I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area." The legal challenge endorsed by the governor is a suit filed by the ACLU and other groups who allege that the referendum that won on Nov. 4 with nearly 53% of the vote is invalid. "It would constitute a constitutional revision, not a constitutional amendment and, as such, the California Constitution provides that it may not be enacted by initiative," reads the request for an immediate stay to stop the proposition from becoming law. In plainer language, what the suit says is that because the gay-marriage ban so fundamentally alters the state constitution by taking away a fundamental right from some citizens, the change should be viewed as a revision instead of an amendment. The California Constitution requires that so-called revisions be passed by both houses of the legislature before being submitted to voters. The request is directed at the same court that in May issued one of the most sweeping declarations of fundamental gay rights in U.S. legal history, making same-sex marriage legal by a 4-3 vote. The Republican-dominated court could decide by the end of this week whether to rule on the request for a stay or send it to a lower court first. But whatever the merits of the legal challenge, the court will face enormous pressure as it deliberates. "If the California Supreme Court were to issue a ruling that would invalidate the will of the people, the consequences for the court would be momentous," the Rev. Albert Mohler told TIME over the weekend. Mohler, president of the Southern Baptist Theological Seminary in Louisville, Ky., and one of the nation's leading Evangelical voices, called such a "usurpation" hard to fathom. Imagine, he said, how much more controversial Roe v. Wade would be now had the court issued the decision after more than half the states had held statewide elections on the issue. "Tuesday's rulings have made it much more costly for any court to reach a conclusion in favor of gay marriage," he said. The results on Nov. 4 were negative for advocates of gay marriage not only in California: citizens in Florida and Arizona also voted to make gay marriage unconstitutional. The vote was overwhelming in Florida, which favored Barack Obama in the presidential race but still decided 63% to 37% to make marriage available only to heterosexual couples. And in John McCain's home state of Arizona, voters reversed course just two years after defeating a similar, if more sweeping, ban on gay marriage. California's vote was closer but not that close. Large numbers of those who voted Democratic chose to limit marriage to straight couples. They did so after a long campaign dominated by heavy spending from gay rights advocates. The vote was also the first to come in a state where gay marriage had already been legalized. Some 18,000 couples wed before Election Day, and public-opinion polls had shown support for the amendment trailing badly just days before the vote. In a teleconference last week among more than 100 gay legal scholars and others who support gay marriage, the mood was dour. "This has cast a pall" over what had otherwise been a historic election on Nov. 4, said D'Arcy Kemnitz, executive director of the National Lesbian Gay Law Association. Longtime gay rights advocate Dean Trantalis of Fort Lauderdale, Fla., and others on the conference call expressed concern that the gay rights movement had become too focused on marriage, and is now paying the price in other more critical areas. "Marriage was never our issue," Trantalis said. "It was thrust upon us by the other side, and they've done a very good job of beating us up over it." The concern is that conservatives will use those same tactics - statewide referendums aimed at overruling court decisions or rebuffing reluctant legislators - to restrict other rights. In Arkansas, for example, voters easily passed an initiative that did what state legislators had refused to do: ban adoptions or even foster-parent roles for unmarried couples, including gays. Now the state joins Utah, Florida and Mississippi as places where gay couples cannot adopt. Trantalis and others are worried that even as the gay rights movement continues to win court victories, those very victories may prompt stronger and stronger backlashes, jeopardizing other hard-won rights, from adoption to antidiscrimination measures by local governments and in the workplace. On the Evangelical side, Mohler told TIME that religious conservatives see the threat from the gay rights' agenda as much broader than just an affront to traditional notions of marriage. "Full normalization of homosexuality would eventually mean the end to all morals legislation of any kind," he says, echoing the line of reasoning made famous by Supreme Court Justice Antonin Scalia in his dissent in the high court's 2003 decision striking down state laws that made gay sex a crime. Advocates like Trantalis say gays should focus less on marriage and more on simply building coalitions with straight politicians and others who can be allies in the political process. "We have to really blend in and show others that the LGBT people are no different than real, ordinary, commonplace people," he said. "We go to the same jobs, the same schools, and have the same God." But such calls for joining the mainstream won't please everyone in the gay community, many of whom feel that they should not have to look and act like everyone else just to enjoy rights that an increasing number of courts are saying are inherently theirs. And for gays in California, who have had full marriage rights for the past six months, giving up on marriage seems a lot like going backward. Gay rights activists look at the newly elected Democratic majorities in states like New York and see hope for expanding gay marriage, despite the setbacks on Election Day. New York governor David Paterson has been an outspoken defender of gay marriage, and some hope to press the legislature there to pass laws allowing full gay marriage - though conservative Democrats could well block such an effort. And while momentum may ultimately be on the side of advancing gay rights, Mohler says the fight is moving from courthouses to living rooms. "Both sides recognize this is now a battle for the hearts and minds of our neighbors," he says. See the 50 best websites of 2008. See TIME's Pictures of the Week. View this article on Time.com Related articles on Time.com: - Roadblocks Ahead for Gay Marriage
- California and Beyond: The Battle over Gay Marriage
- Viewpoint: What the California Gay Ruling Won't Do
- Viewpoint: For Gay Marriage, Time to Go Beyond the Courts
- Arnie Nixes Gay Marriage
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