The Upside of Prop. 8

No sooner had the supreme court of California issued its 6-1 ruling last week upholding the constitutionality of the voter-approved Proposition 8 than gay activists called for mass protests across the country. As legal experts pored over the decision on the courthouse steps, hundreds of demonstrators directed chants of "Shame on you, Shame on you" at the court's justices, four of whom, it should be remembered, ruled last May that the state's constitution obligated the government to allow same-sex couples to marry. That the legal reasoning for the court's decision to uphold Proposition 8 might have been sound -- as the limiting of marriage rights to opposite-sex couples constitutes an "amendment" rather than a "revision" to the state's constitution and is thus subject to popular approval -- did not factor into these preplanned rallies.

Emotion ruled triumphant.

This is not to downplay the legitimate frustration and sorrow of last Tuesday. The anger of gays nationwide -- especially those in California, who saw their rights ripped away before their very eyes -- is understandable. And publicly expressing that anger, albeit peacefully and with respect for those with opposing views, serves as a useful reminder to the country's straight majority that gay people face serious burdens due to the lack of equal protection under the law. For too many heterosexuals -- especially those who do not count openly gay people among their family, friends, or coworkers -- gay rights are an abstract subject, something to vote on once every four years.

But at this point, gay rights advocates in California have the opportunity to fulfill the inevitable promise of their movement: Convince the majority of their fellow citizens that their cause is just and win equality with a resounding -- and democratic -- victory.

To see the silver lining in last week's court decision, it's instructive to weigh the costs of the ruling against its (perhaps, to some, utterly inconceivable) benefits. Let's start with the bad news: Gay Californians have lost the right to marry. That's disappointing, but there is an even chance that Proposition 8 will be repealed by 2010, and if not then, 2012. For a variety of reasons -- the increasing number of young people becoming part of the electorate, the slow acclimation of heterosexuals to gay people living normal lives -- the inexorable trend of gay rights issues is progress toward the equality position.

But the best case for why equal marriage will soon become reality in the Golden State has nothing to do with changing voter demographics, sociology, or better organizing: It is the 18,000 gay couples whose marriages remain legally valid (some of these 18,000 are out-of-state, though just how many is unclear). Their loving commitments to one another, rearing of healthy children, and enriched involvement in their communities will be the best case for preserving and extending marriage equality to all of California's gays and will put to rest fears that allowing same-sex couples to marry will somehow bring the sky crashing down.

So let's keep things in perspective: The worst that gay Californians will suffer as a result of this ruling is the inability to marry for the next year and a half to three years, at most. Meanwhile, gays in California can still enter into domestic partnerships (as they have been able to since 2004), which afford "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law" as marriage, excepting, of course, the voluminous federal benefits. The inevitable bestowal of marriage rights to same-sex couples in California will be only a change in name, at least until the federal government repeals the Defense of Marriage Act or decides to recognize state-sanctioned legal partnerships.

The obsession with winning court decisions obscures the reality of how civil rights struggles are ultimately won. "While Brown v. Board enunciated important values, real change came through the politically enacted Civil Rights Act of 1964," writes Yale law student and gay marriage supporter Aaron Zelinsky at The Huffington Post. He also reminds us that insidious laws like the Defense of Marriage Act and the military's ban on openly gay soldiers must be repealed legislatively, that is, by the people's elected representatives. Convincing citizens in the country's largest state of the justice behind marriage equality will make that job much easier.

How is forcing gay marriage advocates to the ballot box a boon rather than a chore? Winning equal marriage democratically in the country's largest state will help the national gay rights movement. Immediately, the attack on "activist judges" will be neutralized. Since last November the gay activist community has been awash in controversy over the manifold failures and incompetence of the No on 8 campaign. Now comes the opportunity to right those wrongs and perfect the working model of a statewide pro-gay initiative campaign, the likes of which can be replicated by activists in states across the country. And however "fatigued" voters may about the issue of gay marriage, in the words of Sacramento Bee columnist Marcos Breton, that weariness is more likely to lend itself to support for what most people realize is its inevitable passage rather than continued opposition, which only ensures that the controversy is debated more and more.

Judging by the increasingly pathetic arguments of the anti-gay-marriage right, the momentum is well behind pro-equality forces. In the short time between the passage of Proposition 8 in November and the California supreme court's decision to uphold its enactment last week, Iowa, Maine, and Vermont legalized gay marriage and the New York State assembly passed a gay marriage bill championed by Gov. David Paterson. The New Hampshire legislature passed a marriage equality bill expected to become law this week after successful haggling between the governor and representatives. On Monday the Nevada legislature overrode the gubernatorial veto of a domestic-partnership bill, making it the 17th state to recognize same-sex unions. When the injustice of the status quo is so transparent, it can seem fruitless to counsel patience in a civil rights struggle. But in this case, determined patience in the short term will produce everlasting benefits.