The defeat of Prop 8 is a Pyrrhic victory

When a US federal judge ruled last week ruled that Proposition 8 – the 2008 California ballot initiative that banned gay marriage – was unconstitutional, Hollywood celebs rushed to their Twitter accounts to declare their joy.

Comedian and gay activist Ellen De Generes was one of the first to break the news: ‘This just in: Equality won!’ Britney Spears tweeted: ‘So happy! Today is a great day for love and equality.’ Lady GaGa said the overturn of Prop 8 made her write new music, while Perez Hilton simply stated: ‘Equality rules!!!!!!!!!!!!’ A similar sense of elation was palpable among liberals and gay rights activists across the US. There were celebratory public gatherings in San Francisco, West Hollywood, New York City and even in Salt Lake City in Utah.

Yet while the judge’s ruling is, in judicial terms, just and reasonable, the legalistic overturning of Prop 8 may yet prove to be a hollow victory for gay rights in America.

Without doubt, Judge Vaughn Walker put forward a clear and cogent argument for his ruling that California’s ban on gay marriage was unconstitutional. In his carefully argued 136-page judgment, he said ‘Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.’

The judge concluded that the gay marriage ban violates the American Constitution’s due process and equal protection clauses. He ruled that ‘because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment’.

These are reasonable arguments. Lesbian and gay couples should be allowed to marry as they wish. Anything less is a blatant denial of their rights. But while the judge’s decision on the constitutionality of the marriage ban may be the right one, it will do less to advance the cause of gay equality than many people imagine.

The overturning of Proposition 8 advances gay rights in a very limited way. Certainly if the decision is upheld in the higher courts, some gay couples will be able to enjoy the benefits of marriage that had previously been denied to them. But this is a Pyrrhic victory because it was won through appealing to legal authority rather than to public goodwill. And as a consequence, the overturning of Prop 8 could end up deepening anti-gay prejudices in certain quarters.

The campaign for gay marriage has been a hot-button issue in American politics for 20 years. But it is quite unlike the campaigns for civil liberties in other eras. Gay-marriage activism has its origins in the 1970s, but it rose to the forefront of politics in the mid-1990s, when Congress passed the Defense of Marriage Act (DOMA). This piece of legislation was introduced by conservatives as part of a Culture War attempt to define marriage as a legal union between one man and one woman (DOMA, Section 3).

Since then, there have been numerous debates about gay marriage in various states. But the battles have been one-sided and anaemic. The question of gay marriage has been put to electorates on 31 separate occasions, and every ballot has failed to deliver a majority of votes in favour of gay marriage. Currently, same-sex couples can only marry in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and the District of Columbia. In none of these states did the right to gay marriage come about through a popular vote, instead being legalised through court battles and rulings. Even in New Hampshire and the District of Columbia, where the courts were less involved, the electorate was never trusted with the decision to legalise gay marriage: instead, legislators passed gay-marriage laws but failed to campaign on the issue among the general public.

The flaw in the gay marriage campaign is that for too long it has focused on convincing not the people but the judiciary. The arguments for lifting the ban on marriage may have been erudite but they came at the expense of making the real case for equality in the court of public opinion.

The 2008 ‘No to Prop 8’ campaign is a case in point. From the outset, campaigners seemed scared of the Californian electorate. As a result, the campaign was evasive, defensive and ultimately ineffective. Gay rights campaigners raised more money than their opponents, yet failed to drive their message home and, of course, lost the vote.

As David Fleischer has argued in the Huffington Post: ‘[A] comprehensive analysis of the Prop 8 campaign… shows that the only two TV ads created by the “No to Prop 8” campaign that made voters more likely to support same-sex marriage were the only two that used the word “gay” (none of the other 14 breathed a word about whose lives would be most affected by Prop 8) and that made clear, direct arguments on the merits. All of the rest were de-gayed, and had no impact as they offered platitudes, vagueness, unexplained endorsements, and abstract analogies.’ Fleischer concluded: ‘Same-sex marriage can’t win when we don’t make the case for it.’

Yet rather than assess their own failings, when Prop 8 was passed the anti campaigners blamed the Mormons (who sent cash from Utah to support Prop 8), and African-American and Hispanic voters, who are apparently too backward and unenlightened to understand the case for gay marriage. One comment poster at the LA Times website captured the mood of many activists after the passing of Prop 8 when he said, ‘the issue should never have been before the voters in the first place. It’s an issue of fundamental rights, not subject to the whims of a mob.’ With such a snooty view of ordinary people, it is not surprising that gay rights campaigners made little headway in convincing the public.

By appealing only to those in authority, activists have severely limited the broader campaign for equality. It is true that the courts have often played a role in the struggle for civil liberties in the US, but only now have they become the singular focus for winning equality.

Why are gay-rights campaigners running scared from the public? In the past, victories have been won through the ballot box. In 1978, the Briggs Initiative, or Proposition 6 – a conservative attempt to make the firing of gay teachers mandatory across California – was defeated at the polls by a large majority. When Briggs was first launched, it was popular, and many believed it would be passed. Its defeat came about, in no small part, thanks to the aggressive and confrontational public arguments of gay activists like Harvey Milk. By challenging the initiative head on, and refusing to concede a single argument to their opponents, activists turned the tide.

Today’s very different approach confirms, in many people’s eyes, that being ‘pro-gay’ is really just for the great and the good. No wonder some of the American public feel prickly about this issue. The ‘gay issue’, such as it exists in US politics, is now just another tribal dividing line for the urbane elites: it distinguishes us from them; it is a way for aloof liberals to scorn ordinary people. People do not change their minds by being told they are backward and ignorant. With such a snobby dynamic at play, it is hard to see how the judicial defeat of Prop 8 will do very much for gay rights.

Helen Searls is executive producer at Feature Story News in Washington, DC.