Since the passage of Prop 8, I’ve been thrilled to see the number of peaceful protests being conducted in California (and indeed nationwide) in support of marriage equality. It seems a defeat in a place like California has really re-energized the struggle for marriage equality. Most of us (on both sides of the issue) know that marriage equality is inevitable. That had begun to lead to complacency on the pro-equality side, and urgency on the pro-bigotry side; a dangerous combination. What Prop 8 has done is reminded those of us who support equality that, while marriage equality may still be inevitable, whether it’s realized in 10 years or 1,000 years depends on how hard we’re willing to fight for it now. Change requires an impetus and we owe it to ourselves and those who come after us to be that impetus. While it’s great to see new life breathed into the campaign for equality, I’m also seeing the reverse trend among some of our allies, and even some gay folks. We need these folks to realize that the fight is just beginning, it’s not time to give up.
Of course many aren’t openly declaring defeat; more of a strategic waiting, but I can’t help but see that as a position motivated by fear. After Massachusetts, the so-called “backlash” was actually relatively harmless. A bunch of states where gay marriage was illegal decided to, well, make gay marriage illegal. Salt in the wound perhaps but hardly a fresh cut. This time it was different. This time we lost something. We didn’t simply have an obstacle placed in our way, we actually got knocked back a few steps. For the first time in the fight for marriage equality, we’re on the defensive and it stings in a way we hadn’t yet experienced in this particular battle. I understand that because I feel it too.
It’s like when you’ve been riding a bike with training wheels. You feel confident, despite the occasional wobble, and you rush home to lose the extra wheels. When you push off on just two wheels for the first time, it’s exciting until your balance falters and you find yourself suddenly laying on the pavement. When that happens, it’s easy to go bandage up, reattach the training wheels and tell yourself, “I’m not quite ready yet, but someday soon…” And you may even be right, after all we do develop a better sense of balance as we get older (well until a certain age at least), but the reality is that whether you lose the training wheels at 5 or 15, you will most likely take a few spills before you ride off into the sunset.
Likewise, time is on our side with marriage equality. Public opinion is shifting our direction, but we’d be wise to remember Netwon’s First Law of Motion: An object at rest tends to stay at rest and an object in motion tends to stay in motion with the same speed and in the same direction unless acted upon by an unbalanced force. The only reason this “object” is in motion is because we acted upon it, but if Prop 8 shows nothing else, it’s that there is a force on the other side of the issue trying desperatly to balance and ultimately surpass us. Time is on our side only if we keep fighting. We have to keep visible in our communities. We have continue to argue our case. We have to demand what’s right. And yes, part of that battleground is the court system.
Only, let’s not call it the “court system” because I think that terminology makes it too easy to ignore the thing so many “keep it out of the courts” advocates seem to have forgotten. Instead let’s call it the “justice system.” The justice system is EXACTLY where citizens are supposed to go to get justice. That is do say, if you feel the law is being violated in a way that harms you, you SHOULD be going to court. There’s nothing revolutionary or radical about that, in fact, that’s the most prominent reason for having a justice system in the first place. While I’m sympathetic to those who fear more “backlash” from “overruling the will of the people,” they are forgetting one thing. When the “will of the people” is to oppress a minority in violation of the constitution, it’s the court’s job to overrule it. Further, that’s the court’s job because it was the will of of the people to make it so! Every struggle for minority rights has found the courtroom to be an integral battleground (though just part of the larger struggle).
I don’t even really buy the notion that court battles have a significant effect on the backlash. Does anybody really think the bigots would suddenly change their mind about us if only marriage equality was instated by popular vote? Throughout our history civil rights that we now think nothing of were first protected by the courts when the decision to do so was terribly unpopular. And if you’re paying attention, the same thing is happening with marriage rights. California banned gay marriage originally with 61% in favor of the ban. Prop 8, voted on mere months after the CA Supreme Court decision in what would have been the height of any court decision-inspired backlash passed with only 52% of the vote. National polls show the same trend. Connecticut gays and lesbians are now getting married because the electorate looked at the judges’ decision and said, “not really something we oppose that much after all.” The reality is that most of straight America would not have even been thinking about gay marriage if it wasn’t in the news because of court cases, and people don’t change their minds on issues they aren’t thinking about.
I was perhaps most disappointed to see Jason Kuznicki, one of the original members of my blogroll back on Where the Dolphins Play, actually discouraging California gays and lesbians from try to get rid of Prop 8 through either the courts OR the popular vote, based on the notion that a constitution is some sacred thing that shouldn’t be changed. A constitution (whether we’re talking about the federal or state level document) is only as sacred as the purpose it serves. When that purpose is to take away rights, you better believe it ought to be changed. The point that a change to a constitution is not to be taken lightly is valid. It’s a reason that Prop 8 should never have been on the ballot to begin with and certainly is a good argument for why requiring only a simple majority vote on constitutional amendment is a poor policy; but if we are to have a method for changing our constitutions, and I believe any constitution worth the paper it’s written on should contain such a method, I can think of no better reason than to ensure the rights of the citizenry are protected.