the writing and photography of Neil Kramer

Proposition 8 and the California Supreme Court

Comment on Backpacking Dad‘s post on California Supreme Court’s decision on Proposition 8 —

I’m saddened by today’s decision but optimistic that, in time, a few more old conservative California bigots die off and a new wave of young liberals will take their place and overturn this embarrassing discriminatory law.

I remember people getting pissy at me after Proposition 8 passed in California in November because I mentioned something I read in the LA Times — that the proposition passed because traditionally-oriented, religious citizens of the state weren’t comfortable with gay marriage, including a very large percentage of African-Americans and Mexican-Americans.   They voted for Proposition 8 because, on average, they tend to be more traditional and religious.   I’m not sure why this upset people at the time.   I was just trying to spread the blame!   Just like it is great for America to have an African-American president, it is a credit to our democracy when all ethnic and racial groups can vote as stupidly as the majority.   This is called normalcy.

Voting is as close to a spiritual experience as you can get in America, so I tend to agree with the California Supreme Court’s decision not to overturn Proposition 8.   I know this is an unpopular thing to say, and this has nothing to do with my feelings about gay rights or gay marriage.  This has to do with my belief in the sacredness of voting.  The idiotic citizens of California voted for Proposition 8.    For the State Supreme Court to overturn the vote of the people, they must have a very strong legal reason to do so on the state level, and they didn’t have one.   This is an issue that needs to go to the United States Supreme Court, so THEY can rule it as unconstitutional.   Or Californians need to wait until next time to fight it in another vote.

So who should we be angry at because of this injustice?  When I read quotes online saying “I hate California,” “Shame on California,” etc., I am unclear who we are talking about?  All of California?  Me?  White male executives?  Old Conservative Bigots?

I know I don’t have any close friends who voted for Proposition 8.   I even know Republicans who believe in the rights of gays to legally marry.   Is it the fault of the California Supreme Court?   No.  They are intelligent scholars doing their job, which is to uphold the law, not to do what people on Twitter think is popular.   They need to have some legal reason to be activist, or else the the will of the people becomes meaningless.

California is a big state with a lot of different types of people.  If you really want to be angry at someone, try the religious establishment — of all races and ethnicities and religions — old AND young — who continue to make this “gay marriage issue” into a political issue.    Don’t they have something better to do with their time?

More views — Whit at Honea Express


  1. maggie, dammit

    I remember the first time I really understood the point of the Supreme Court was when Clarence Thomas was appointed and I, a budding feminist at the time, was horrified over the Anita Hill stuff and my dad sat me down and taught me all about Constitutionalists, and how I didn’t have to worry about Thomas’s politics or personal flaws because he upheld the Constitution so strictly. I don’t believe (not since the 2000 election, especially) that Justices are Gods, but ever since then I look at the whole process differently and I get why the California SC did what it did yesterday.

    Well said, Neil.

    And clearly the only real solution is to kill all the voters with whom we disagree. I’m gonna start with my husband. 😉

    I can’t believe I typed this entire thing on my crackberry with my paddy thumbs. I’m wiped out. Going back to bed.

    Ah, fuck it, might as well keep talking. How are you this fine morning, Neil! Me, I’m good, just typing away on my little phone, not even drunk yet.

  2. Reuven

    Note to supporters of same-sex marriage: Don’t waste any money on EQCA, the organization that ran the ineffective and disastrous “No on 8” campaign. I gave them several thousand dollars and feel ripped off. Now they want me to support the very people who voted to end my marriage.

  3. floating princess

    Well said, Neil. As much as I hate Prop 8 and everything it represents, the voters passed it. The state Supreme Court was not the proper venue to callenge that decision.

  4. churlita

    What I’m going to say is tongue-in-cheek, but still kind of true… Yeah. I’m just glad I live in Iowa. Our state is making tons of money off of the double professional income, no kids couples who are flocking to our state to get married. Plus, I’ve been able to hang out with friends I haven’t seen in years. It’s too bad about Prop H8, but it’s been working out really well for us here.

  5. abbersnail

    My feeling is that civil rights issues should NEVER be put to a vote. In this case, I’m a little confused by the fact that the court initially stated that separate-but-equal doesn’t work, THEN a ballot measure was created to change the state constitution, THEN it passed, and now we are back in the courts.

  6. Aimee Greeblemonkey

    Great post. The issue is big and confusing and has many facets to it. I do still stand by my original tweet of “What the fuck California?” simply because I don’t understand why it’s SUCH a big deal, why it’s mired in legalize, and how we got we got here, and why can’t we let people who want to live together and share households JUST DO IT.

  7. Whit

    Nice post, Neil, and thanks for the link. If all decisions were made solely by Twitter we’d be out of Midol and only having sex 3 words at a time. Plus, Ashton.

  8. Bill

    You guys are all missing the point. This is about discrimination. And if the bigot majority had voted an end ot interracial marriage the SC would have found a way to stop it. It’s because I am not valued equally by society and my government, my rights are deemed not worth protecting.

    Equal protection is quaranteed to all (unless you’re gay)

  9. dan-E

    “Just like it is great for America to have an African-American president, it is a credit to our democracy when all ethnic and racial groups can vote as stupidly as the majority.”

    I couldn’t have put this any better. I wonder when people will really understand discrimination is more than just a black and white issue?

  10. Danny

    I agree with Abbersnail and Bill. That piece-of-shit legislation, cloaked in the lies and the most bogus propaganda campaign since Joseph Goebbels’ heyday, never should have been on the ballot in the first place. I really do have lots of room in my heart and brain for people with different beliefs than my own but the campaign for Prop 8 was, in my opinion, one of the most vile episodes in California’s history (and we’ve had PLENTY of them).

  11. anymommy

    Neil, great post. In fact, I tried all day yesterday to write something similar and couldn’t get it right.

    I read the Cal SC opinion – and yes, I would like some pats on the back, it’s freaking War and Peace in legal jargon. It’s fascinating (for me, I’m a lawyer). The Justices faced a narrow procedural issue and had to balance the will of the voters under a (I might say misguided) fairly loose constitutional amendment provision against the loss of rights the amendment entailed.

    Here’s the important lesson, in my opinion. THANK GOD the Federal Constitution is not so easily changed. THANK GOD fundamental rights enshrined in that document cannot be undone or limited by a 50% vote. We should all be glad about that, conservative, liberal, gay, straight, Christian, agnostic, whoever we are, because we could all be in the minority on some issue and that is an uncomfortable place to be.

    I truly believe that the Justices of California correctly followed the laws they are sworn to uphold. I just as strongly believe that discriminatory marriage laws violate the Equal Rights Clause of the United States Constitution. Our legal system is slow and cumbersome, but the right case will make it to the US Supreme Court and that’s the decision needed to end this unfortunate chapter in State law.

  12. Sun Tzu

    Do any liberals believe in a God? I believe that in the United States of America we have the right to do what we want. But this question and future comments goes beyond the self centered now that plagues this country.

  13. Kerri Anne

    “My feeling is that civil rights issues should NEVER be put to a vote.” -Abbersnail

    Yes, EXACTLY.

    Why does any part of California get to decide for any other part of California who is free to marry whom, and for what reason? It’s blatant discrimination, and I would like to think we as an entire country have outgrown it.

  14. Taka Laka

    I agree with you man, even though I was against Prop 8, I will respect the decision of Supreme Court. The gay marriage supporters still have a chance to overturn the Prop 8, but it is going to be a long shot.

    On other hand, bringing the issue to the Supreme Court is a faster way, but it is also risky since the ruling can either go toward allowing or banning the same-sex marriage across America. So it will be a gamble.

  15. badassdad05

    The court could have decided this change to the constitution was a revision, as opposed to an amendment, which would have required 2/3 majority to pass. But they didn’t. I’m not sure why. But I don’t blame the court. I blame the voters. And those who support gay marriage and didn’t vote. It all makes me sad.

  16. Neil

    Anymommy – from now on, I stop talking about your hotness on Twitter and praise you for you intellect and legal knowledge. You said what I was trying to, but sounding smart.

    I hope that the Supreme Court will eventually see this proposition as discriminatory. I have a good feeling about that, and I think some of the name-calling online does a disservice to the issue. There is no reason for writers to pull out all the old cliches, from blaming the old male bigots or comparing this issue to that of blacks being made to sit in the back of the bus. In general, gays and lesbians ARE protected under California law. This is not Mobile, Alabama circa 1960.

    The truth is that marriage is taken VERY SERIOUSLY by many people, both religious and irreligious, including many of you. The main obstacle to gay marriage is that some religious people do not like this sacred event redefined. Not all of these people are monsters. I can perfectly understand someone wanting a gay man to have every single civil right due to him, but have an issue with him getting “married.” To many, marriage is still a religious act, a bonding of man and woman, something that has been going on for centuries. Allowing two men or two women to marry is scary to these traditionalists, because it undermines a central part of their religion. It’s like the state forcing department stores to make 1/2 of all Santa Clauses be women. Why shouldn’t women have the right to be a department store Santa Claus? In fact, why shouldn’t I be allowed to go to a Disney MommyBlogger summit if I want to consider myself a mommyblogger? Why can’t I be a mommyblogger? I’m making this ridiculous analogies not to condone the people who voted for this Proposition, but to better understand who they are, and why they did what they did, and how they might be thinking. They see gay marriage as an attack on their world vision.

    I am a very open and liberal person. I believe that gays should be allowed to marry in California. I also believe that no woman should be turned away from playing Santa Claus in Macy’s. I even believe that I should be allowed to present myself as a mommyblogger and be accepted as one if I so choose. How many of you are as open and liberal as I am? If you’re not, then you should understand why religious voters passed Proposition 8. They do not hate gays. They are afraid of their status quo, their way of life, from falling apart. They are not thinking about the rights of gays to marry, but the rights of themselves to see the world in a certain way.

    I’m not so convinced that marriage is a fundamental civil right. Comparing this issue to black/white segregation is an insult to both the civil rights movement and the gay rights movement. There are civil unions. I know, I know — this is not the same a marriage. I just think that there are intelligent arguments for both sides. I hope the Supreme Court sees the wisdom of making marriage a civil right, going against the religious standard that is out of step with modern society. But, the religious have rights too. Are you prepared to tell your son that the Santa Claus at Macy’s this year is a woman? Who has more of the right — unemployed women to play Santa Claus or families wanting to maintain the myth that the department store Santa is the “real” Santa — and a male?

    Again, I’m all for gay marriage. I think Proposition 8 was nasty. I just think the real issue is — modern vs. traditional religious ways of interpreting marriage, with both groups seeing the battle as one of rights. To me, the biggest failure is with religious leaders, who are not teaching their congregants that traditions can change, and by being more inclusive, become stronger.

  17. Ron Hetland

    At its simplest level, the pro Prop 8 outsold the against. Too much energy was directed arguing the semantics rather than the core of the proposition: it was a bully tactic. Does anyone believe if civil rights was put to a vote in 1960 it would have passed? This is, after all, the best country that money can buy. It certainly is far from over.

  18. Long Story Longer

    I get what you’re saying, of course. But I think it kind of misses the point. Civil rights should never be put out to a vote. And posting about it now feels a little antagonistic to me, I gotta be honest.

  19. teahouseblossom

    I completely agree with you, Neil. Regardless of their personal beliefs, the California Supreme Court frankly had no choice but to uphold the referendum that was passed based on the will of the people of California. To do anything else would have been making themselves “activist judges.”

    The tide will turn. Patience, grasshopper. The law moves at a glacial pace. It’s the way we’ve set up our system. But it will come around.

  20. Neil

    Long Story Longer — Yes, I guess I am a little antagonistic, and why not? I think there should always be some tensions between the different branches of the government. That was the wisdom of the founding fathers. Almost every post I have read today slammed the California Supreme Court as if they were a bunch of bigots who hated gays. It is just not the case. They are committed to the law.

    You are right. The issue of marriage should never been put to a vote. But once it was, as screwed up as it was, you need to accept the consequence and fight it through the legal system. Or even better, start a campaign to change the minds of the religious. Calling those who voted for Proposition 8 a bunch of “bigoted fucks” gets you nowhere, other than applause from your peers. I would rather think of most of these voters as scared of losing something very important to them — their traditional view of marriage. I think loving gay couples should start outreach programs to churches and try to change their minds and hearts.

    Equal protection under the law is a civil right. Maybe we should eliminate marriage completely from civil society and just enforce civil unions. Then, churches can decide on their own whether to marry gay couples. All the cool churches will have the gay congregants and the others will be left behind. That would be the ideal payback!

  21. Neil

    Long Story Shorter — I know this is an important issue with you, so I do apologize if I seem antagonistic. Believe me, I am 100% behind fighting this as you are. But I also know my readers — and most of them feel the same as both us — angry at the discrimination. I just choose to think about it in a different way, from the POV of the California Supreme Court, who I don’t think deserve to be seen as the villains.

  22. Danny

    I don’t view the California Supreme Court as the villains, but I do view SOME SEGMENTS of the religious community who organized campaigns of disinformation and hate as true villains in this struggle. It’s not just a case of the nice religious folks who have different beliefs, there was some really ugly shit that went on. Again, I’m not talking about all religious groups or people, of course, nor am I condemning every person who voted for Prop 8 as an hysterical bigot, but there’s no question that a powerful subset of these so-called religious groups very deliberately set out to scare the rest of their flock with outright lies and propaganda. It may be quite legal to do so, but THAT to me is quite villainous. I think you are being far too generous when you say, almost as a blanket statement, that religious or any other group of voters do not hate gays. How can you say that? Many don’t, but many DO. (Sorry for the name-calling. My new anti-anxiety meds haven’t quite kicked in yet!)

  23. Neil

    Danny, maybe you are right, but why would I assume so much hate. Maybe I am naive, but do you really think there is a large segment of the population that hates gays?

    Again, let’s take this argument to our favorite subject — Jewish stuff. Every year there is that same argument during Christmas. Should stores say Merry Christmas or Happy Holidays? Saying Happy Holidays is more inclusive and “nicer.” But there are a lot of grouchy people who resent their holiday greeting at Walmart being changed? Do these people dislike Jews and Muslims and atheists, or are they just fearful and insecure or, at the most, selfish? Isn’t it possible that those on the religious right are more fearful about losing control of their idea of marriage than being hateful? They aren’t going out beating up people, just protecting what they see as “their” territory.

    Again, I’m not condoning this, and you are right about those who used the media during the campaign to create fear and hatred. But that still doesn’t explain the majority who voted for Proposition 8, or offer solutions for making gay marriage more acceptable to this group other than forcing it onto them by virtue of the United States Supreme Court.

    And frankly, I’m not that proud of being associated with a group that has members that make statements like this:

    I’m saddened by today’s decision but optimistic that, in time, a few more old conservative California bigots die off and a new wave of young liberals will take their place and overturn this embarrassing discriminatory law.

    What’s wrong with believing people can change there perceptions, even traditional religious people? Wishing for a new regime led by people hoping for the quick death of the members of the old regime is not very heartening.

  24. Weston Krogstadt

    I guess you would have to be mad at the founding fathers of the US Constitution. Proposition 8 was clearly constitutional.

  25. peter wang

    if our country socialize medicine,we would not have this dispute.only thing that our gay friends want is access to health benefits that a couples get when they are married.socialized medicine for all and let christian conservative keep what marriage is between a man and a woman.why make a scene over marriage if they get socialized benefits.

  26. Deb on the Rocks

    You are missing one HUGE point in your logic:

    Yes, voting is sacred. Because of that it is very important to examine what gets on the ballot.

    Should Prop 8 have been on the ballot? If the answer is no and many people committed to justice, equality and Constitutional right believe, then overturning it would not have negated the votes cast in favor of 8.

    We all agree it is not okay to put just anything up to a vote: this country never intended that sort of free-for-all (or issues put up based on the highest out of state bidder), and we have checks and balances to mitigate against that danger. So why and how did Prop 8 get on the ballot in the first place, and why is it okay to create exceptions to rules? The California Supreme Court let people down by deciding that the issue was appropriate for a popular election.

    And your religious voter analysis–that is EXACTLY why the Supreme Court should have stepped in.

  27. TRO

    Too much for me to comment on past the obvious fact that the best way for those to support gay marriage to actually achieve their goals is through rational and honest discourse with those who do not. You will never win this issue by demonizing the other side. What you need to do is work on convincing those people in the middle to come your way and you do that with positive debate.

  28. Backpacking Dad

    The comment about old people dying off left on my post was emphatic, but not misguided. Although pro Prop 8 supporters come from all races, classes, age groups, etc… older voters supported Prop 8 in much greater numbers than younger voters. Time’s arrow will decide the issue even if the courts don’t. More initiatives, later, when the currently influential, older voters are no longer influential or voters, will be successful if the trend of cultural acceptance of gay relationships ages along with the younger population that embraces it now.

    I didn’t write the comment, but I don’t disagree with the abbreviated analysis contained in it.

    As for who I am mad at…well, I’m not mad. I’m disappointed that the court didn’t think Prop 8 had wide-reaching implications within the Constitution (that it revised what the constitution means by “equality”). But I was never under the illusion that the court was being asked to decide if the VOTERS had been wrong. That wasn’t the question posed. The question posed was whether the initiative itself was an improper vehicle because of the decision against Prop 22 the year before. The court said it was fine, and that’s disappointing. They weren’t asked a moral question though, so I have no anger at them as though they did something immoral.

    If someone feels anger at the court it is misdirected. That doesn’t mean that the deicison wasn’t a reminder, and reignition of the anger at those voters who supporter Prop 8 in the first place.

  29. mckay

    as a conservative in both politics and religion…and as a former theatre major with many gay friends, i say this:

    “Why doesn’t the gay community just come up with their own awesome definition of a gay life union? Call it something new and unique; something that fits the gay lifestyle and true desire for a lifetime commitment with a same sex partner. Maybe gay people can succeed in their version of marriage even better than the archaic version of traditional marriage. They deserve to have a fresh new label for their gay commitment. Call it something other than marriage and i’m all for it.”

  30. LiteralDan

    I agree. Much as it burns, I agree. Way to put it all out there.

  31. paola

    Proposition 8 was passes a couple a months ago but was taken to California’s Supreme Court by gay and lesbian activists for being discriminatory against them. Prop 8 was put out to voters, threw out the state, to decide whether a marriage between gays and lesbians was legal in the state of California. When it was said and done, the people of California decided that a marriage can only be legal between a man and a woman and the Supreme Court of California upheld it on Tuesday but said the 18,000 same-sex weddings that took place before the prohibition passed are still valid. So in a way gays and lesbians didn’t lose everything after all. Now in a way, I understand why the Supreme Court upheld the decision. I believe that if they were to overturn it, any other proposition passed that would be agreed by another group would challenge in the supreme court and it would be start of something chaotic were voters would be confuse because if they thought their proposition passed and that was that, then they would be in a rude awakening. Was it the right decision? It depends who you ask and what their belief is. Gays and lesbians believe they were offended by prop 8. Supporters of prop 8 say a different story. I on the other hand stand in the middle. I understand what the gay and lesbian community is coming from but also what the supporters for prop 8. It’s a grey area. Now there’s word that gay rights supporters could also appeal in the federal courts, arguing Proposition 8 violates the equal protection clause of the U.S. Constitution. So there’s a never ending story to it. It goes to show that when people believe in something and they unite, anything is possible.

  32. Christine

    It’s a thorny subject, and I’m glad you articulated my stance…I couldn’t have done nearly as well.

    I’m totally in favor of gay marriage; I look forward to the day when this issue is behind us. But until then…

    As you stated, Neil, this is at its core a fight over the term “marriage.” Civil unions are recognized in California; they give homosexual unions the same rights as heterosexual marriages. They just are not called ‘marriages.’

    As Elton John said, “I don’t want to be married. I’m very happy with a civil partnership. If gay people want to get married, or get together, they should have a civil partnership. The word ’marriage,’ I think, puts a lot of people off.

    You get the same equal rights that we do when we have a civil partnership. Heterosexual people get married. We can have civil partnerships.”

    Also, the idea that all who oppose gay marriage are bigoted, ignorant, or homophobic is problematic considering President Obama’s take on the issue.

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