The Prop 8 Panacea: Federal Courts, the Arts, or a Boycott?



If anyone was surprised by yesterday’s upholding of Proposition 8 by the California Supreme Court, their heads were in the sand. There was nothing about the vote — from the signature initiative that placed it on the ballot to how the campaign was run — that suggested an overturning of the results would be in order. Indeed, had the Court done so, it would have been followed by predictably deafening caterwauling of the right, furious about “legislating from the bench.” And in that case, they would have had a point.

At the same time, for the California Supreme Court to have nullified the 18,000 same-sex marriages performed in that state would have been tantamount to an act of war for the pro-marriage lobby, and understandably so. Despite wherever one may sit along the philosophical continuum, those marriages were in fact performed in a legal atmosphere; for the Court to make retroactively illegal what was legal at the time would have been, well, “legislating from the bench” and thus, by right-wing logic, equally reprehensible. Unless and until Proposition 8 is repealed, these folks are grandfathered in, destined to be poster children for the same-sex-marriage debate across the nation.

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I recommend everyone read the press release issued with yesterday’s Court announcement. For one thing, it’ll spare you from digesting the 136-page decision itself. To wit:

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The 136-page majority opinion notes at the outset that the court’s role is not to determine whether Proposition 8 “is wise or sound as a matter of policy or whether we, as individuals believe it should be a part of the California Constitution,” but rather “is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.”

Indeed, the question before the Court was to establish whether Proposition 8 constituted a change — a “revision” in legal parlance — to California’s constitution, which is not allowed via public referendum. That can only be generated by a two-thirds vote of the state legislature. Whereas an “amendment” to the constitution is permitted by a simple majority vote and may be placed on the ballot through a signature-gathering initiative.

As the Court found Proposition 8 to be an “amendment” to California’s constitution, not a revision, it will thus be quite possible for forces to be amassed, at the appropriate time and appropriate channels, to repeal Proposition 8. But even that, I predict, will not be the end of the battle: I wouldn’t be surprised to find these referendums on California ballots for the next 10 years — unless and until the federal courts get involved, that is. And that’s what same-sex-marriage advocates are counting on, now that suit in federal court has been filed to challenge the validity of the California Supreme Court ruling.

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The attorneys bringing the suit are David Boies and Theodore Olson, who were rivals on a little case called Bush v. Gore back in 2000, one of the least democratic decisions in American jurisprudence. Boies and Olson are part of a “project” called American Foundation for Equal Rights, a new group (its website is super-basic) for which this challenge in federal court is its inaugural effort. Here is a quote from story in The Advocate that addresses what everyone on the left wants to know: Why would Olson, who was President Bush’s Solicitor General from 2001 to 2004, act on behalf of gay rights while presumably still belonging to the famously gay-inhospitable Republican Party:

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

Clearly, Olson had better not bump into Rush Limbaugh in a dark alley for a while.

Meanwhile, here is a question it isn’t too early to ask: If the federal court challenge fails, if the U.S. Supreme Court should pass on this issue, what plans are in place for a 2010 repeal of Proposition 8? More to the point, since I am an advocate for the arts and believe the national creative community should exercise its might economically as well as politically, what is to be the role of the arts in California — not just Hollywood but the entirety of the arts community, an immense force — in this regard? What should be its role in ensuring passage of the repeal? Campaigning, certainly, is one approach, but not-for-profit arts groups must not contravene IRS rules on political activities.

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Or could it be that same-sex marriage advocates need to play hardball, like the right? For example, why should there not be organized boycotts of California industries and businesses that support antigay causes? Or is the state too big to make effective such an action?

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My guess is California couldn’t withstand the effect of a coordinated economic action, but it is also that the gay community doesn’t yet have the ability to put one into place. If the federal court system should afford advocates no relief, though, the gay community may have no choice but to hurt the antigay lobby in the one place they’ll feel it the most.

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