One Proposal for Going Forward Towards Marriage Equality in California

This commentary is the opinion of the author and may not necessarily reflect those of other authors at Box Turtle Bulletin.

Timothy Kincaid

November 6th, 2008

The voters of California have spoken twice about whether gay citizens are to be considered full citizens of the State, regarding marriage. In 2000, the voters declared with a majority of 61.4% that the state would only recognize marriages between opposite sex couples. And just this week they declared by 52% that the decision of the Supreme Court be overturned to exclude gay couples from marriage recognition.

But the voice of the people need not be silent at this point, never to change their view. And polls show that time is working in favor of marriage equality. Both a growing comfort with gay couples and a sharply different attitude between youth and seniors suggests that without unanticipated circumstances it is inevitable that soon a majority of California voters will believe in marriage equality.

So I propose that we, as a community, consider the following strategy:

We place a constitutional amendment on the ballot of every statewide election until Proposition 8 is overturned. Such an amendment would be written to do nothing other than reverse the language that was inserted on Tuesday night.

An amendment to the state constitution can be placed on the ballot by means of valid signatures totaling 8% of the previous gubernatorial votes. This means that as few as 694,324 valid signatures need to be collected. A serious effort combining No on Prop 8 and HRC lists along with pride parades and festivals and Universal Unitarian, United Church of Christ, Episcopal, and some United Methodist congregations should make this a relative inexpensive project. Even if signature gatherers are required, the cost should be less than a million dollars in total.

I propose that beyond the cost and effort to collect and submit signatures that we do nothing towards passing the amendment. Nor should we go in with any expectation of success. Our community cannot well afford either the financial or emotional cost of a battle like the one we have just gone through.

But we should make it clear to the voters that we can and will continue to place this issue before them until they side with equality.

There are a few possible negative results of such a plan.

If we spend nothing to pass such an amendment, it may fail by a larger than 52% to 48% margin. This will embolden those who seek to oppress us to claim that California is moving in their direction.

This might even cause some of our allies to become disheartened. We must make it clear that we know it will take time for Californians to come to our aid but that we will be unrelenting.

Also, it may give some voters the impression that they’ve “already answered this”. Why are we back when they said “No” once, twice, three times, etc.? That is an irritation that we will just have to withstand.

But this approach also has some positive sides.

For what we spent on Proposition 8, we could fund 35 amendments. And the cost could be spread over several years allowing us to recover financially and emotionally without giving up a constant pressure.

Repeatedly having to choose discrimination is emotionally distressing to those persons who like to think of themselves as decent and loving. You can always tell yourself, “gosh, how did I vote?” on one or two amendments and “remember” that you just must have sided with decency and love for your neighbor. But after the third time, it’s pretty hard to lie to yourself.

And if we spend no money to front this, the enemies of freedom will have to expend increasingly large amounts to fight against us which keeps that money from doing evil elsewhere.

And finally, if we do decide that the time is right to make another large stand and that we could win, we already have the apparatus in place to raise funds, run ads, and make our claim on the promises of equality that will still stand in the Constitution ready to be freed from the shackles of bigotry, religious intolerance, and heterosexual privilege.

John Howard

November 6th, 2008

Another negative of that approach is that it doesn’t help anyone right now. When Prop 8 is certified, marriages between same-sex couples won’t be valid or recognized, and they can’t just go back to those DP’s, they were declared unconstitutional, remember? They are just as unconstitutional now as they were before, since Prop 8 didn’t amend the constitution to say that it was OK to have separate institutions with equal legal rights.

So, the immediate issue is how to continue to protect same-sex couples legally and not dissolve their unions.

Willie Hewes

November 6th, 2008

I like this thinking. If I may join in:

I think this fight is best fought not in the last few heated weeks before the election, but all year round, bit by tiny bit.

TV commercials are expensive, and although they reach a lot of eyes, I’m not convinced they’re an efficient way to change minds.

The “think of the children” argument seemingly swayed a lot of people. People who must be afraid that the gay is something you can catch if you learn about gay marriage in Kindergarten. Or people who can’t help but think of sex when gay marriage comes up, and assume their children think the same way. If there’s any more rational reason why the education argument worked so well, I can’t think of it.

Either way, that’s a fixable deficit in understanding. But I don’t think big scale protests, bumper stickers and sign waving are they way to fix it. These people need educating. We need to explain it to them, even, apparently, the most basic stuff.

You can’t make a child gay by being gay at them.

Gay people are just like you.

Gay people love their children too.

The future is ours, start swimming. This fight will not go away until equality is ours.

Write, talk to people, explain it, all over and over again. Because they still don’t get it.


November 6th, 2008

John Howard is wrong. California’s domestic partnership laws are still on the books. From the CA Secretary of State’s website:

“The California Supreme Court decision issued on May 15, 2008, regarding same-sex marriages did not invalidate or change any of the Family Code statutes relating to registered domestic partners.”

Also according to reliable scholars of the law, our existing legal marriages won’t be automatically dissolved even though Prop 8 has passed. It’s a bit of a grey area, but while no new marriages will be recognized, there’s no precedent for existing marriages to just vanish.

Finally, Timothy, in your third paragraph you refer to “Proposition 2.” I assume you mean Proposition 8, unless you’re just really pissed off that people care more about chickens, calves, and pigs than gay families.

Timothy Kincaid

November 6th, 2008


yes it does frustrate me that my state has, through initiatives, banned the eating of horse meat and regulated the encloser of pigs and chickens but when it comes to gay humans they just can’t find it in their hearts to care.

But you are right… it’s a typo.


November 6th, 2008

Every time we do that we bleed the Christofascists and eventually they will get tired of pouring money down a rat hole to deny us our rights.

On the other hand equality is so dear I hope we never tire of the struggle to obtain it.

Samantha Davis

November 6th, 2008

If we do that and don’t fight it we keep gay marriage a wedge issue without any real chance of success. Basically, by doing so we polarize the debate and it probably won’t go in our favor.


November 6th, 2008

Why did they ban eating horse meat? I had horse noodle soup in China and it was delicious…

Getting to the point, this is a good idea. If we’re really relentless and make this a perennial issue, it’ll show we mean business.

And the campaign strategy really needs to change. It needs to be more obviously about equal rights for gay people, not just abstract appeals to say “no” to discrimination. When doing TV ads, make sure to explicitly include happy gay couples, especially gay couples who are minorities and interracial.

Also, we really need to hit out against the religious right and take pre-emptive action. Cast them as theocrats and bigots and make a big deal about how they used lies, blackmail and exploitation of children to get what they wanted. Now, it’s THEIR turn to be on the defensive!

At the same time, have people go out and do outreach, face to face. Have black gay people go into black communities and tell that “gay” does not necessarily equal “white.”

And I was thinking exactly what SuzyQ was: Spend a minimal amount of money, and let the religious right spend all the money they can getting the measures defeated. The thing is, we’ll definitely lose several times, but through the use of “soft power,” we’ll eventually persuade people to be on our side, all the while making the Talibangelicals look really bad and bleeding their wallets. With any luck, they’ll have gay-marriage fatigue in no time.

I’m not Californian, so there’s not much I can do to support it, as far as discussing it with activists out there is concerned, but you should totally go with this if the lawsuit against Prop. 8 fails.


November 6th, 2008

Here’s another idea:

To avoid engendering fatigue on our side, don’t limit it to gay marriage or even gay issues. Go after other issues near and dear to the Talibangelicals, such as:

1. A amendment reaffirming separation of church and state that says something like “No law shall be made in California that gives de jure or de facto legal privilege to the tenets or morals of any religion over those of another”
2. An initiative to require churches to pay taxes if they engage in any political organizing
3. An initiative to revoke the “opt-out” clause in the California Education Code

Timothy Kincaid

November 6th, 2008


I can’t agree with your third item. I support the rights of parents to opt-out of any education that they believe to be inappropriate for their children, regardless of my feelings about the curricula.

It’s a core value to me that parents are ultimately responsible for their offspring, not the state.


November 7th, 2008

Correct me if I’m wrong here but any “Amendment” to undo Prop 8 would 100% be a revision and this immune to voter initiative and you would have to get congress to agree to do this every voting cycle and that will not happen.

So technically AJD’s idea is the only one that would work, though you’d have to find something that sounds horrible on paper but religious people take for granted and get that “outlawed”. My personal favorite example is to pass an amendment that “prohibits people from exposing minors to ritualized vampirisim and/or cannibalism.” It would be real easy to get “concerned parents” behind it and have huge impacts on religious freedom. You could even run an add that says “If this amendment doesn’t pass schools would be required to teach kindergartners that eating human flesh or drinking human blood is okay.” Maybe insert a few images from public Ash Wendsday ceremony showing children in pretty clothing their face covered in ash.

Lynn David

November 7th, 2008

Proposition 8 was doomed to fail from the beginning. In an interview in the German magazine Speigel the Republican-appointed CA Supreme Court Justice Ronald George said the following (Via Good As You):

If this amendment to the constitution passes, it would prevent gay people from being married, but it would not remove this protection that we put in our analysis. … We’re saying that if you look at a classification of gay people, you must treat it just as if you are classifying on the basis of the color of their skin or their religion. And that is probably the most important thing in the whole ruling, even though the population’s attention understandably has mostly been on the “M word” of marriage.

Courts will often not comment on amendments offered up for popular vote, often hoping that that vote will simply go the “right way.” But the Court when prompted, and it will be prompted in several suits, will rule on such amendments. George is saying that the only way to rule on Prop 8 is to strike it down as unconstitutional.

And just think all that Mormon and Focus on the Family money that went into Prop 8, spent meaninglessly…..

Willie Hewes

November 7th, 2008

“And the campaign strategy really needs to change. It needs to be more obviously about equal rights for gay people, not just abstract appeals to say “no” to discrimination. When doing TV ads, make sure to explicitly include happy gay couples, especially gay couples who are minorities and interracial.”

YES! And children. Children were a crucial point of the argument, because the Yes campaign played on all the worst and most deeply rooted fears regarding homosexuals and children.

The way to counter those fears is not to say “Oh, no, schools don’t teach anything about marriage”. It is to say: Look, gay people have children, raise children, are around children, and it’s FINE!

This aspect of homophobia is something that really is close to a “phobia”, and phobias are cured by exposure to the thing that is feared. The No campaign made a big mistake by allowing the other side to own the children issue, and allowing the illusion that voting Yes was in favour of children. Who would vote against the interests of children?

There are children with gay parents, they are hurt by prop 8. They are hurt deeply by homophobia. I think this should be a prominent part of the message in the future, the gay community should take the “think of the children” slogan and make it theirs.


November 7th, 2008

Lynn David-Great reference, I hadn’t seen that interview. I’m a bit more hopeful about the prospects for the legal challenge now.

Kith-What’s your basis for the notion that (assuming that Prop 8 is ruled to be an amendment and not a revision itself) re-amending the constitution to reverse Prop 8 would rise to the level of a revision rather than just another amendment? Just curious if you have a source for that or what the legal reasoning would be for such an argument.

Regan DuCasse

November 7th, 2008

I wanted badly to join in the marches. But I had major surgery on my legs two weeks ago, and I need a wheelchair when I go out.

But I was sitting at home watching, and they interviewed a black bishop, Frank Stewart who said ” now that the people have voted twice, these gay people in the streets need to suck it up.”

I was seething after that. And thought of Dr. King, all the women who fought for women’s rights, the civil rights movements and the Holocaust and wondered at how a man of influence would tell a human being to ‘suck up’ violations on their civil rights?

I called him up, and he likened accepting this defeat to that of McCain’s loss.

We went back and forth, he brought of the Scandinavian study, the incident of the children at the wedding in San Fran.

So essentially, he drank the Kool-Aid. His arguments were only repetitions of old information and stereotype.
I corrected him on each portions, at which he would fall back on ‘the Bible says’

So I reminded him that the Bible has been redefined over time, marriage has been redefined, and now the Constitution has been redefined but to discriminate where it didn’t before.

The difference being, the FREEDOM to marry or believe in the Bible are choices, living under the protections and tenets of the Constitution is not.

I told him in every way I could that he was on the wrong side of history and the Bible wasn’t going to protect him like the Constitution has.

That was the point.
Eventually he grew tired of the exchange and reminded me what a victim of discrimination he’d been, but that gay people had never had it like he had.
He’d just gotten a call from a Mormon woman who is feeling threatened by the marchers and wanted to have body guards.

At that, I said that gay people have always been stigmatized as being threatening no matter WHAT they are doing. Even caring for children and serving this country in uniform is called threat.

So, what was the point in telling me something like that?
For sympathy for compassion?
If he did’nt have it for the real threat, even to their lives that gay people had.
Why was he looking for it now?
I told him that gays and lesbians have done NOTHING but use the most peaceful of means, accessing courts and earnest outreach. And now that patience has gone thin, and needs become urgent, he’s got the nerve to complain that gay people are too impertinent for doing this march?

I told him his hypocrisy was so deep that considering his position he was a profound disappointment and I had no faith that he understood the impact of his actions and should know better.
And if he considered me unChristian, then he could suck it up.

Really, I’m calling out every single black person I can who voted for this, starting at the churches I know backed it.

He’s not the first black bishop who is anti gay I have argued with. I did the same with one in MA.

I just needed to vent at someone while I watched people I care about take to the streets.

It’s disconcerting that a bishop could be such an ignorant hypocritical ass. But he was.

I don’t blame my folks for being angry and hurt and disappointed. A bunch of people who don’t care to know us, divorced married people by their will.

I’m not sure what is the best strategy now. Confrontation seems like a good idea with emotions inevitably so high.
But they brought this fight, and if they think anyone should just ‘suck it up’ and go away, such a statement would only come from someone whose never had to.

Keep on stepping my friends, we will find a way out of no way. I’m proud and happy to be a part of this.
The Bishop assumed that I was gay. I told him that it’s no party defending people who have had little defense.

It’s not easy to be on the side of people who are feared and distrusted, but that’s what being a CIVIL RIGHTS advocate is all about. Doing it for the good of all and because it’s good period.
So he tried the cheap shot of me being anti Christian for my support of gay people.
I said, right Bishop, it’s anti Christian to treat another person the way I’d wanted to be treated.

I told him good night. But I’ll tell you. I’m thinking and thinking on what I can do to help.
I was as civil as possible with that knucklehead, but I’ll be there with everyone every step of the way and won’t stop.
Tomorrow is a rally in Sunset Junction. I’m going in a wheelchair if I have to.
I love you guys…
And thank you for accepting ME in this fight.
That’s what I appreciate most of all. Being trusted to be there with you.


November 7th, 2008

Tim, you have a point with the third item… It probably wouldn’t pass, but I just figured it would be a good diversionary tactic.

Still, my point is that you should have a variety of amendments designed to provoke the religious right to avoid encouraging our supporters to give up on the marriage issue and view it as the Lyndon LaRouche of ballot initiatives.

Kith, you could also say in an ad, “It’s obvious from shows like ‘True Blood’ that vampires are trying to co-opt our children!” (Jokes aside, I have to credit that show — not to mention “Big Love” — with being a supremely clever metaphorical plea for civil rights, gay rights in particular; the opening credit sequence even flashes an image of a church with a letter board outside that reads “GOD HATES FANGS.”)


November 7th, 2008

I think that’s a great idea. I’d only suggest one change: Why not write the ballot measure to undermine all the horrible lies “Yes on 8” people tell to persuade swing voters?

One intriguing (and hopeful) wrinkle of the “Yes on 8” campaign is that they never showed a same-sex couple in their ads, nor did they ever talk about lesbian and gay couples. This is because many “swing” voters on gay ballot initiatives don’t want to think of themselves as bigots. So “Yes on 8” told them, again and again, that this isn’t a vote to hurt gay people; it’s a vote to protect the children! It’s a vote to protect churches!

If there’s no legal barrier, then a ballot measure — or a series of ballot measures — could call for:

1) An explicit constitutional right for parents to opt out of having their children taught about same-sex marriage in public schools, and

2) An explicit constitutional right for religious institutions, and religious officiants, to decline to host or perform same-sex wedding ceremonies, without any legal penalty or any loss of tax status.

3) Removing proposition 8’s language from the California constitution.

The down side is, it’s pointless, legally — all those rights already exist in California. The “Yes on 8” people are lying when they say otherwise. And let’s face it, it’s galling to have to defer to this garbage in order to have justice. But politics are like that.

The up side is, it would cut the anti-marriage movement’s most powerful arguments off at the knees. Yes, they’ll switch to other nonsensical arguments — but the reason they chose these arguments is that they’re the most powerful arguments they’ve got. If they had anything better, they would have used that instead.

Remember, we only need to peel off 3% of voters or so for a victory, so every voter pealed off their side counts. If there are a lot of swing voters who were persuaded to vote for proposition 8 because of the “protect the children/churches!” argument — and that’s certainly what the “Yes on 8” organizers believe — then taking those arguments away could change the outcome.

At the very least, the more the “Yes on 8” proponents are forced to argue that gay couples are bad, the more their true natures will be revealed. That’s worthwhile in and of itself.


November 7th, 2008

I have read ther court decision and while not a lawyer, I don’t understand why the passing of Prop 8 would necessarily “overturn” the court’s ruling. My understanding is that the court ruled that sexual orientation was a suspect class and therefore could not be treated differently by the laws of California. They then ruled that marriage would be available to same-sex couples as that was the more likley move by the legislature. If the amendment stands, and the State can only recognize marriage as between a man and a woman, why can’t the ruling for equal application under the law still apply? The court made it fairly clear that they could call ALL relationships by some other name and still meet the requirement of the equal protection clause. What if the State determined that in keeping with the ruling and the new amendment, California did not recognize ANY marriage and instead only recognized Domestic Partnerships and Marriage would be a religious ceremony with no legal rights attached?

I realize that would be a radical concept, but it would be in keeping with the intent of Prop 8 and leave the court’s ruling intact. T


November 7th, 2008

Todd-A suit would have to be filed challenging the marriage law with the argument you describe. Courts don’t rule of out thin air. The suit that has been filed is a much less dramatic petition, it challenges the procedure by which Prop 8 made it to the ballot and if affirmed would simply strike Prop 8 down. No need for a radical restructuring of family law in California.


November 7th, 2008


Thanks, I was pretty sure it would need to be filed, and I agree that it is a much more radical restructuring, but it does seem logical based on my understanding of the ruling. I would prefer marriage, but would accept equality for all under any name.


November 7th, 2008

Ampersand, I like the way you think.

I don’t know much about California law. Do you have to collect all the signatures before you present the idea of the ballot measure?
I strongly suspect the first two measures would be tossed out as superfluous – then we could make sure the reason they were tossed out got lots of publicity. If the process didn’t require the whole 700K signatures first it could be a very quick and powerful response.

And on your comment of only needing to peel off 3% more voters – the margin changed from over 22% to under 4% in eight years. The mere passage of time (as more people who grew up in a more reasonable world grow up and can vote) will shift the vote. Not to mention all those people we can hope will find themselves with “buyers’ remorse” when they realize they’ve legislated against their neighbors based on a pack of lies.

The more I watch the behavior of the “Yes on 8” supporters the more I’m convinced their true fear is that without Proposition 8 they would be forced to acknowledge that there are thousands and thousands of loving, committed same sex couples rather than retaining their image of miserable people living a “lifestyle” of drugs and promiscuity. Just why this scares them eludes me, except perhaps that, like their fear of reasonable sex education for adolescents, it reduces their ability to control others.


November 7th, 2008

Todd, I don’t think that would be good tactics. If the equal rights movement ever seriously pursued that option, we’d be vulnerable to the anti-equality people screaming “see — they really ARE trying to destroy marriage!!!”

I don’t think working to take the word “marriage” away from heterosexual unions, either in the courts or through legislation, is a winning strategy.


November 7th, 2008

Scotte, I’m afraid I’m not at all familiar with the California ballot initiative law — would such amendments necessarily be tossed out? After all, although these rights are already implicit, they aren’t yet explicit in the Constitution.

In any case, just as you say, if they actually got thrown out then that would be good publicity.


November 9th, 2008

Todd, I completely agree with your idea. The state should mandate that all couples must have a civil ceremony at a municipal facility, call it Civil Unions Everyone is equal. Only public officials would be allowed to perform the rite. It could be done when they get their license, and meet all the other legal requirements.
Then, those who want to can go to a church of their choice and have their Union blessed and call it marriage.
That seems to me to be a very neutral position in a secular society and it seems pretty simple. Civil Unions for all.

Nevada Blue

November 10th, 2008

Call me a romantic, but in addition to the legal means, I’d like to see a Ghandi-like shut down of the state.

M Ghandi called for a one day strike in India – just to show the power behind the message. He shut India down, comletely without violence – empty roads and empty offices – and gave the Brits food for thought.

I understand the turnout wouldn’t include the entire state’s population, but even a smallish percentage would be significant on a couple levels. first, just the numbers of people not in the office that day would give an idea of the numbers of people that are being discriminated against. But it would also show that these are the very people you work and play with every day – that you may have known for years.

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