People in San Francisco (of both the gay and straight varieties) are largely upset that the proposition passed. Many are indignant and convinced that anyone who voted for Prop 8 must be a moron or a homophobe. I disagree with this and I believe that had the "No on Prop 8" organizers been more cognizant of their opponents' points of view, and less smug, they could have defeated the measure.
In fact, I would go so far as to say that the opposition to Prop 8 was wrong-headed and shows exactly what's wrong with the "American Left" even though I, myself, opposed Prop 8, and don't consider myself a part of "the left."
Gay Marriage as a Right
The No on 8 campaign was fixated on the concept of 'marriage as a right,' and of the denial of marriage to homosexuals as a violation of rights. This is completely wrong. There is no such thing as a right of marriage, for homosexuals or heterosexuals, any more than there is a right to do anything which is not specifically prohibited. It's important to wrap your mind around this concept before you continue reading. If you are stuck on the idea that "marriage is a right" you are part of the problem, not the solution. You must first learn what "rights" are, before you can use them as an argument for or against anything. Everything that is "allowed" is not a right. I am allowed to drive in the left lane of the freeway right now, but if they close it for construction tomorrow, that doesn't mean my rights have been violated. There was no prohibition against driving in that lane before, but that doesn't imply that an inalienable right was created.
Why is there no Right of Marriage?
Why would there be one? Marriage is a contract entered into by two parties, with one or two overseeing or governing bodies: religious authority and/or civil institutions, such as city governments. It's not even clear what a right of marriage would be, since almost every other right we think of is an individual thing. I don't have the "right" to marry you without your consent, and if I do have the right to marry you, with your consent, then is marriage, rights-wise, any different than a contract between two private parties?
Historically, without the sanctioning of either the church or the government, all marriages were unofficial. Note, the fact that they are unofficial doesn't mean they aren't valid, it just means that the society doesn't recognize them explicitly. Imagine that the government stopped issuing marriage licenses and the churches stopped performing weddings, for any reason(s). This wouldn't mean that marriage would cease to exist as a concept, but it would essentially mean that all marriage became unofficial. Unofficial marriages could still be contracts between individuals, but there would be no official recognition of marriage's contractual norms by the government or the Church, the two bodies which have historically sanctioned marriages.
The No on 8 Campaign's Mistakes
The No on 8 campaign completely failed to understand what a "right" is when they wrote all their commercials and pamphlets. They also completely failed to respect that, historically, the church has been just as involved in marriage as has been the government. The idea that governments can unilaterally redefine marriage without the consent of the church OR the popular sentiment, while not necessarily wrong, was certainly likely to invite attack, criticism, and opposition, which it did. That people now indignantly assume that anyone who voted 'Yes' on 8 must be crazy or homophobic further proves that the organizers (and many of the supporters) of the No on 8 campaign fundamentally lack respect for religious people and institutions. Without respecting and understanding the other side of the argument, they come across as smug and arrogant. As I learned from a wise man (my father) long ago, it is far easier to argue well against the side you believe in than for it, because when you argue for it, passions confound and circumvent logic and rational consideration.
The City of San Francisco, Mayor Newsom, and all the people now indignant that Prop 8 passed, make this fundamental mistake of arrogance. They assume there is nothing at all which might be correct in the opposition's (Yes on 8's) point of view. This is completely wrong. Of course there are valid points for Prop 8. SF and Newsom assumed that it made no difference what the religious community or even other city governments thought, though, because they didn't adequately consider the arguments against sanctioning gay marriage.
Another example of the arrogance of the 'No on 8' campaign was the education issue. The issue was basically this:
The 'Yes on 8' people were saying that allowing gay marriage meant that 'gay marriage' would be taught in schools. There was a lot of disagreement about whether this was true or not. While it's not fundamentally important that gay marriage be 'taught' in schools, it is fundamentally important to acknowledge this issue. The real issue was: do we want to redefine marriage? Imagine your child asking you, "What does married mean?" And you say, "It means two people love each other and raise children together and have a family." You can no longer say that it's only between men and women, or that the woman will be pregnant and have the baby, or whatever, because the definition of marriage has been broadened. Wrong or right, it's an issue. To pretend that somehow there was no impact on the 'definition' of marriage is non-sensical. In fact, the 'No on 8' campaign should have directly acknowledged that, in fact, they *wanted* to redefine the family and marriage in this way, instead of pretending that there was no 'issue' of redefinition, for which the 'what would be taught in schools' issue was a proxy. Preserving the definitions of words over time IS important.
This brings me to my next point: "What is the harm in allowing only domestic unions instead of marriages between gay people?" The American Bar Association (and the state bars) decides who can call themself a lawyer, and I can't call myself a lawyer. It makes no difference how much I know about the law, how other people feel about it, etc... They don't allow me to sell myself as an attorney, because they feel like a societal purpose is solved by defining the word carefully and restricting many people from using the term. Does this violate my "right" to be a lawyer? Not really, because anyone can be a lawyer if they meet the criteria, which are there to promote a societal purpose (that lawyers be trained and in good standing with their peers). If there is an expectation that marriage is about procreation, then it is entirely logical to define marriage in a heterosexual way. Am I saying it "should" be defined that way? No, I'm not. But it's completely arrogant to assume that somehow you have the sole right to define what marriage means, against the will of the church, the majority of civic governments, or the will of the majority. It may be that society "defined" marriage in a heterosexual way for a reason, and that reason must be addressed before the term (or the concept) can be redefined. Gay people have every opportunity to get married today, just not to people of the same sex. Is that weird? It's no weirder than the idea that I have every opportunity to go to UC Berkeley if I meet their acceptance criteria.
If we allow gay marriage, do we have to allow polygamous marriage? Why not? These slippery slope arguments are tough, because everything is a step in a direction, and sometimes we have to be in the middle, not on one edge, but, if that's the case, then the 'No on 8' people should have been advocating that this was the "right" compromise now, or should have been arguing that all forms of marriage are acceptable. If they are arguing that this is the "right" compromise now (allowing gay marriage but still prohibiting other things, like polygamy), it must be based on some of the same utilitarian principles which justify the government sanctioning of marriage in the first place. Gay marriage advocates need to make the argument NOT that gay marriage is a right (because then, why isn't having 5 wives, one of which is a sheep, a 'right', too?), but that gay marriage is actually good for society, just like straight marriage, is, and should therefore be encouraged.
Why does the concept of marriage still exist at all? If two men, who might be celibate, decide to call themselves a gay couple, and be married, then they have the ability to check off different boxes on forms. If this is important, and we want to allow people to do this outside the government-sanctioned marriage rules, why don't we simply allow anyone to choose one person to share tax breaks with? If, on the other hand, marriage does serve a very specific societal purpose (promoting a certain family structure) and we value that, then it's entirely logical that we can't expand its definition arbitrarily. So, if we can't expand it arbitrarily, then we have to have some criteria to use for expanding it. This criteria might be about the reduction in promiscuity. It might be about promoting "love" bonds as a concept. It might be about creating "two-parent" families for children.
The Paternalism Problem
There is a logical discontinuity in the literature of gay rights activists. They often take the approach that the government shouldn't decide what goes on in the bedroom. That's fine, and a perfectly reasonable position. They are saying, "it's not the government's role" to decide whether I should be gay or straight. If that's the case, though, then the role is left to the people. If the role is left to the people, then why is the City of San Francisco saying that gay people are going to be married "whether you like it or not?" You can't be a progressive and not believe in paternalism. The whole point of the progressive movement is that the government must actively lead the way, sometimes against popular sentiment, to foster change. That means the government IS in the business of deciding things, like what should go on in the bedroom. You can't have the government be "hands off" when you disagree with them, but actively legislate for change when you agree with them. That's just called selfishness (and a complete disregard for other people).
The logical conclusion of the anti-paternalism argument is that all official marriage should be abolished, not that marriage should be redefined in an unpopular way.
Reasons Why 8 Should Have Failed That Have Nothing to do With Sexuality1) The courts had already decided. Every time we overrule the courts, especially without a more substantial process than getting 50.1% of the (mostly uninformed)voters to say 'yes' one time, on one ballot, we lessen the grip of the rule of law and slide closer to the anarchistic populism that has signaled the end, historically, of many fleeting attempts at democracy.
2) We can't put propositions on the state ballot to decide every issue. It is City Governments that issue marriage licenses, and so by putting this on the state ballot, we have taken that power away from local governments. San Francisco is allowed to have different laws than other places, and we shouldn't limit that allowance for local independence.
3) Amending the constitution is generally undesirable. We shouldn't amend the constitution to solve problems. This argument is related to number 1, but is slightly different. Not only do we lessen the power of the judicial and legislative branches by amending the constitution by ballot proposition, but we also imply that amending the constitution is appropriate redress for grievances. In general, it should not be.
How Should the 'No on 8' People have Made their Case?
First of all, they should have stressed the constitutional, rule of law, and anti-populism points I mentioned above, but they should also have taken a different tack on the 'social' issues.
The commercials should have shown an orphan being played with by two lesbians. They should have said, "The courts have already decided. Do you want to take these loving guardians away from this child or force her to be told that her parents are not married? Would you rather put her in a foster home or allow these people to simply continue their loving family?" The, the commercial should have shown a dumpy looking foster home or a statistic about how bad foster parents are on average. That argument directly addresses the societal benefit of marriage and explains it. Will it appeal to everyone? No, of course not. But, it might appeal to one in 20 people, which would have been enough to defeat the proposition.
The 'No on 8' campaign should have had an Episcopal, Anglican, or Presbyterian Bishop on TV saying the proposition was bad. He should have been saying that marriage is about commitment and protects people from the sins of promiscuity and helps stabilize families. He may represent only one voice of the church, but the idea that the church is divided, and potentially transforming itself, is important. Rather than pretend the church has nothing to do with marriage (which is absurd), those people within the church who advocate for gay marriage should have been highlighted.
The 'No on 8' campaign should have admitted that they are progressive paternalists. They should have said, "Society has changed. It's time to lead the way by redefining marriage for our society. Let's stop promiscuity, discrimination, and single-parenting. Let's allow loving couples to raise children in two-parent families regardless of what gender they are. Besides, the courts have already decided, so if you respect the American system, you should accept the ruling of our judicial branch. What if 51% of the people thought you should move to a different town one day. Do you want to live under the tyranny of the majority? Or the rule of law? The law has spoken. The law has redefined marriage in a way that helps society. Respect it."
I think those arguments would have swayed 3%, or so, of the people in the middle, and that would have been enough. That argument isn't arrogant, because it doesn't say, "I'm right and you're wrong." It says, "There are good things about two parent families, equality, marriage, and the rule of law." Do you want to be the one to take those things away?
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