Is Another Popular Vote California’s Best Hope for Getting Gay Marriage this Century?

After Judge Walker’s 138-page smackdown of a decision on Prop 8 last year, it seemed like the end was near; it felt to everyone like that one battle was finally won, and celebration was justifiable. Prop 8 had literally been declared unconstitutional by a federal judge; what more did we need to do?

But it’s been almost a year, and somehow — though honestly, not that surprisingly — everything has stalled. A stay on the performance of marriage ceremonies was introduced almost immediately after the ruling, and now the appeals process on Judge Walker’s decision is stretching into infinity – the California Supreme Court is currently mulling over the question of whether the apellants have standing to appeal at all.

Most people have pinned all their hopes on the Supreme Court, crossing their fingers that the case will in fact work its way to the highest level over the next few years, and that the combination of the moderate-to-liberal judges that Obama’s appointed (like Elena Kagan and Sonia Sotomayor) and the decision of the Department of Justice to stop defending DOMA in court will mean that Prop 8 will finally be gone for good. Even optimistically speaking, though, that’s a timeline of years at the least, and little comfort to the thousands of couples in California who have been putting their legal union on hold for years already.

But a campaign communication from Equality California yesterday reminds us of another option: putting Prop 8 back on the ballot, to be overturned by voters instead of judges. EQCA and its then-Executive Director Geoff Kors (he has since stepped down, citing family reasons) were the subjects of much criticism after Prop 8 first passed; they were accused of focusing on the wrong voter blocs and using ineffective methods to reach them, relying overmuch on high-priced political consultants instead of the community they represented.

After Prop 8’s passage in 2008, EQCA immediately began research to determine whether Prop 8 should be put back to a vote and hopefully struck down on the ballot in 2010, or whether more time was needed to bring around a voting public that had been roundly misinformed by a variety of political and religious groups about what gay marriage meant for California. After the seeming progress in the Ninth Circuit Court of Appeals, however, they assumed as most people did that this issue would soon be settled by the courts, and backed off their campaign. As the ability of the courts to end Prop 8 quickly becomes less assured, EQCA is testing the waters for a ballot vote once more.

“Because legal experts are advising that the Proposition 8 federal challenge could take years to resolve, Equality California is launching a community engagement initiative to start a discussion on whether to return to the ballot in 2012 to repeal the marriage ban or whether to wait for a final decision by the courts,” the group said. “Before making any recommendation, Equality California will survey its membership, hold 10 town halls across the state and an online town hall, conduct a poll of likely 2012 voters, consult with political experts, coalition partners and engage with its members and the LGBT community. Equality California will announce results of polling and analysis by Labor Day.”

This is about Prop 8, of course; it’s about a ballot measure that should never have passed for a dozen reasons, like the massive amounts of funding it received from out-of-state religious organizations and the fact that much of the Yes on 8 information given to voters was blatantly false. But it’s also about the growing up of an organization, of a largely traditionalist activist organization trying to figure out how to make change in an era where 53% of Americans support gay marriage but just a few years ago Prop 8 passed with 51.2% of the vote. This is an organization that’s spent untold dollars hiring political consultants of the same ilk that work for the people in the White House, and it’s navigating a historical moment when queer activists are chaining themselves to the White House gate, when people are more concerned about whether any kids have killed themselves today because of homophobic bullying than about whether the first ever lesbian comptroller has been appointed to the mayoral office of Oceanside. If they really do want to unite the community to explore and commit to avenues besides the court system, they’ll need to change a lot of things about how they’ve always operated. The good news is, they seem willing to try:

“How could we have realized earlier that professional, high-paid consultants were not delivering product?” [Los Angeles Gay & Lesbian Center CEO Lorri Jean] asked. “I’m trying to say this and not be too provocative, since we have so many professional political campaign consultants in the room. But, you know, there is an approach that people who are professionals use to do this. And I think one of our challenges as a community, given that issues of relevance to our community are different than anything else that goes on the ballot because of the emotion and the other things that are associated with them, we have got to find a completely different way than business as usual to do this work.”

No matter how much EQCA proves its willingness to change, however, it won’t change the fact that same-sex marriage has never been achieved by a voter referendum. When put to a vote of the people, gay marriage has so far lost every single time. For instance, it’s been noted that many of the mistakes EQCA has since acknowledged – not enough face-to-face contact with voters, overlooking the importance of voters of color, and more – were corrected in Maine’s campaign against the revocation of same-sex marriage, and we lost there by an even larger margin than in California. Many wonder if EQCA will ever have the strength to play as dirty as the other team, and if that might be our only real hope of beating them.

In the end, the real issue at hand is whether voters in California have changed their minds. Straight people as well as gay people have followed the high drama of the Prop 8 court case, although probably not with the same passion. Did it have any effect on their hearts or minds? Or do they still believe the completely unfounded assertion that repealing Prop 8 will somehow lead to their children being “taught gay marriage” in school, or that their own marriages will mysteriously erode?

It’s hard to say, which is presumably why EQCA is asking people about it in their town hall meetings. If EQCA is able to successfully engage the queer community in a united effort (a monumental undertaking in and of itself) and reach straight voters across California, this could be the first time that a voter referendum ever grants us rights instead of taking them away. Or it could be more of the same, all over again, but even sadder this time.

We’ll find out at least what EQCA’s opinion on the matter is by Labor Day, and until then watch the California Supreme Court like the citizens long denied our full participation in the life of the nation that we are.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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  1. Pingback: Is Another Popular Vote California’s Best Hope for Getting Gay Marriage this … – Autostraddle | Gay Marriage News Articles

  2. It is a Constituti onal claim at this point, and as such, it belongs in the hands of the judicial branch.

    It did not even belong in the hands of the electorate to begin with, as matters of civil rights have historical ly largely been decided by the judicial branch, and never the electorate . (Except for LGBT citizens, apparently.)

    This should play out in the correct arena – the courts. It also does nothing in terms of schooling this particualr generation about minority rights to continue letting the majority vote on something they have no right to be voting on to begin with.

    I really hope the LGBT groups do not open this can of worms by trying for a repeal in 2012. Have we learned nothing from the last 3 years? We will lose. Duh.

    We do not need this to win. We need to be patient and let the courts fulfill their duty. It’s a Federal question now. And what we have on our side is that the Constituti on of the United States demands no less than full equality for all law-abidin g citizens.

    I sure hope we don’t screw this up with another $80 million dollar referendum here in California that, at this point in the game, is meaningles s to the question of marriage rights for LGBT citizens.

    Citizens do not decide the rights of fellow citizens.

    Putting this back on the ballot says otherwise, and it must stop.

    • Agreed completely. When the DC Council first voted to approve marriage equality in December 09, the New York Times quoted one council member on the Board of Election’s decision to not allow a referendum on marriage equality:

      “Councilman Catania opposes putting the matter to a popular vote. He noted that in a referendum in 1865, only 36 of the city’s residents voted to extend the franchise to African-American men.

      ‘It isn’t that I’m fearful of losing,’ Mr. Catania said. ‘I think the process is diminishing. I think that putting the rights of minorities on the ballot and allowing the forces of intolerance to spend an unlimited amount to demonize and marginalize a population is unsavory.'”

      (full article:

      It doesn’t belong on the ballot. It is so, so tempting to put it to a popular vote if it seems winnable, because then our opponents will have no leg left to stand on—but ultimately, that just isn’t the point. Rights are not for the majority to grant or deny, and we should not legitimize any attempts to set that precedent.

    • as a Californian, as fantastic as winning at the polls in 2012 sounds, i feel it would not help our fellow states as much as a supreme court decision smacking down Prop 8 once & for all.

      a precedent from the supreme court in favor of marriage equality will do more good in the long run, i believe.

  3. Absolutely agreed with the above comments. This article illustrates, in part, the very problem with the pro-gay movement. It has become politicized.

    It is no longer about simply “fighting for justice.” Now the gay groups need to know IF they’ll win, by what margin, how they can calculate what needs to be done in order to do it, etc. etc. It’s awful to watch. There is no sense that this is simply justice which MUST be done, no matter what; there is so much calculation going on at this point that it’s funny to contemplate how often the pro-gay are overlooking what some feel they SHOULD be doing in order to win.

    The battle shouldn’t be put to a popular vote; it should stay with the courts. Why does no one mention ceaselessly, ceaselessly protesting the length of time it will take the court to reach a decision? Large, widespread protests concerning the actions of courts *do* change history and *do* bring about swifter or different justice. The U.S. supreme court itself (through at least one of its members) has said that that court rules based at times on POPULAR OPINION — as incredible, as jaw-dropping as that sounds.

    Why no talk of protesting the continued denial of rights? Protesting on the level of the union protests in Wisconsin? Asking allies to help? Asking Hollywood to go on strike because of this? Massive shutdowns in California could send a clear message. But we all know why not.

    With politicization of a movement comes fear. The pro-gay are now FEARFUL of what might happen to their movement, and it is proving repeatedly deadly to the struggle for equality. It is handing victory after victory to the anti-gay.

    I have always envisioned massive, massive efforts in all fifty states — a nationwide effort, in fact — which is simply not materializing. It can’t and it won’t without lots of people on board. Rhode Island has just started considering CIVIL UNIONS, for god’s sake. Why are you people constantly capitulating to the anti-gay? It boggles my mind at this point and I can understand why some of the pro-gay are withdrawing their support for ALL of this. It is now what they envisioned and there is no substitute for justice.

    Start thinking outside the box, I have said repeatedly, over and over and over, about what CAN be done. My god, and if you do decide on a ballot initiative (as unfortunate as that will be), TAKE the anti-gay to COURT for every single misinforming, mendacious, manipulative advertisement they produce. Start TAKING THEM to court for these lies, let them play out in a court setting. Even if it does nothing but make the cause much higher-profile and bring the truth to the electorate, that will have been a VICTORY.

  4. Big, big error in my previous post: The sentence at the end of the penultimate paragraph should read: “It is NOT what they envisioned and …”

  5. umm, as far as I know, EQCA is no longer doing any work towards a voter initiative. I worked with the field operation for nine months last year, and, as of last november, the field program lost funding and most if not all field offices closed….

  6. I’m gonna do what the Teabaggers do and see what the Founding Fathers had to say about this topic:

    “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens…[T]he majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.”

    The issue isn’t how they will be voting on it. The issue is whether the majority faction on straights should have the ability to vote on whether to oppress or not oppress us queers. James Madison says no.

  7. I agree with those against a vote; the point is, everyone then “lies down and dies” under the assumption that they must “accept” how long the court is going to take in this matter. I’ll be honest: I see NO fight whatsoever in the current movement. From what I have heard, the gay activists in the 70s and 80s — THAT was fighting for your rights. This? … naah. Sit back and let the courts take years and years. Now, you can’t guarantee that protesting this ceaselessly would result in a victory for you — but that’s the very problem. Because you ASSUME the court won’t listen to you, you can’t be bothered. And now you are in the very boat you SWORE you wouldn’t be in — waiting years and years for marriage equality.

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