Gay marriage fight requires thick skin for a lasting victory

In the wake of the stunning success of Proposition 8, gay rights advocates held rallies across the nation to protest the end of gay marriage in California. Many of these rallies targeted the Church of Jesus Christ of Latter-Day-Saints (LDS), which engaged in a highly unusual foray into politics by amassing both financial and operational support for Prop. 8. Michael R. Otterson, the managing director of public affairs for LDS, stated, "We've spoken out on other issues...But we don't get involved to the degree we did on this."

LDS, apparently taken aback by the political protests, issued a statement stating, "People of faith have a democratic right to express their views in the public square without fear of reprisal." While people of faith undoubtedly have the right to express their views in democratic fora, there is no consensus on what constitutes a "fear of reprisal."

After all, to be an active participant in the democratic experiment, one must have thick skin. Democracy's epic act-taking a stand on an issue of great importance to our conscience is never without consequences. People will disagree, sometimes aggressively, about a variety of issues. Moral questions, such as abortion or gay marriage, frequently make foes of family and friends. It isn't easy being a democrat.

The fact that taking a stand has consequences, however, is what give individual action its gravitas. It takes little to vote with the majority and maintain the status quo. The embodiment of courage is when one stands his ground knowing there is something to lose.

The ultimate incarnation of political courage is to place ideas above life itself, as Sir Thomas More, the "heavenly Patron of Statesmen and Politicians," did in his opposition to King Henry VIII, and as millions others have done across the globe with far less fanfare in times of war and peace.

The challenge for the democrat is not only to maintain thick skin under duress, but also to resist compartmentalizing his opponent.

The resignation of Scott Eckern, a Mormon, as artistic director of the California Musical Theater, speaks to the danger inherent in demonizing those we passionately disagree with on one issue, but who we otherwise enjoy so much in common. Eckern was forced out of his position after he gave $1000 in support of Prop. 8. Even those who opposed Prop. 8 saw the irony in Eckern's fall. Noted Broadway composer Mark Shaiman told the New York Times, "It will not help our cause because we [gay rights supporters] will be branded exactly as what we were trying to fight."

Instead of belittling the deeply-held beliefs of supporters of Prop. 8, gay rights advocates need to take responsibility for its failure. As Shaiman stated, "We [gay rights supporters] were too compliant. It was beyond our ken that this could ever happen." Put another way: gay rights supporters should not and cannot rely upon the decisions of courts to enforce their conception of equal protection-they must always be prepared to persuade their fellow citizen of the righteousness of the cause.

Opponents of Prop. 8 claim have tried to evade fighting for gay marriage within the marketplace of ideas by arguing that some rights are so basic as to be beyond reproach. But beyond reproach from whom, and in what way? Who decides what those basic rights are if not the people themselves? Most Mormons and many other Americans believe that the institution of marriage is one of the building blocks of society that requires government "protection," as evidenced by the overwhelming Congressional majorities the Defense of Marriage Act received in 1996. Gay rights advocates agree that marriage is a central institution, and as such it must be extended to all persons.

If the opponents of Prop. 8 are willing to cede to judges, who are far from a representative of the polity, the right to make final decisions regarding the most fundamental issues of our time, it stands to reason that they must also be prepared for judges and Justices to rule that abortion is not a fundamental right, that Miranda is superfluous, and that death by firing squad does not constitute cruel and unusual punishment.

However, opponents of Prop. 8 continue down this path undeterred. One lawsuit filed this week claims that Prop. 8 constitutes a revision of the California Constitution, rather than merely an amendment, and thus must be passed by a two-thirds majority of the Legislature.

The California Supreme Court (CSC) has grappled with this claim before. In 1978, in the case of Amador CSC declared that a "revision" is "[A]n enactment which is so extensive in its provisions as to change directly the 'substantial entirety' of the Constitution…[or one that produces] far reaching changes in the nature of our basic governmental plan."

The California Supreme Court held that a proposition consisting of more than 21,000 words divided into 12 separate sections (and 208 subsections) subsections constituted a revision. McFadden v. Jordan. The "Crime Victims Justice Reform Act" (Prop. 115, 1990) also constituted a revision because it prevented the CSC from interpreting the criminal procedure rights of defendants more broadly than the federal constitution, thereby abrogating the designated function of the state court to the Supreme Court of the United States. The court described this delegation of authority as "certainly a fundamental change in our preexisting governmental plan." Raven v. Deukmejian.

The only "clear" precedent that emerges from these cases is that the court takes a relatively ad hoc approach, steeped in realpolitik, to determine the scope of the citizenry's power to draft its own constitutional framework. Thus, victory in the courts on this technical distinction will be just as tenuous as the victory that was ultimately undone by the referendum itself. Moreover, the embrace of this tactic, like Mayor Michael Bloomberg's near-unilateral quashing of term limits, is a clear end-run around the will of the people to define their own government and sets a deeply disturbing precedent.

If the "basic government plan" is rooted in majoritarian politics-the core of which is the creation of a Constitutional framework by the people-the use of the amendment process for practically any purpose should be permitted. This principle, I admit, scares even the most devoted followers of populism. However, fear of what democracy might produce, a concern rooted in a Tory-like belief that the average American is incapable of governing himself, is not grounds for undermining its inherent promise.

I was proud to join thousands on the steps of Cambridge City Hall on May 17, 2004, when this city became the first in the U.S. to accept applications for marriage licenses from gay couples. It was a triumphant moment, 50 years to the day after the Supreme Court's momentous decision in Brown v. Board of Education helped to launch the civil rights movement.

However, there was a sense of deep unease in the crowd that the fight was far from over. Indeed, even in this bastion of liberalism, the Supreme Judicial Court of Massachusetts endorsed gay marriage by the slimmest of votes: 4-3-a far cry from the unanimity of Chief Justice Warren's court. Despite the Court's unanimity in 1954, there was no assumption in the African-American community that the courts would continue to be their greatest ally. To the contrary, supporters of the movement understood that Brown was only the beginning.

The fight would continue in the courts, but true, lasting victory would only be achieved if the fight was taken to the streets, churches, universities, barber shops, lunch counters, and workplaces of America. We could not then, and we cannot today, rely on judges to make progress for us. Just as popular democracy was the engine of civil rights reform, so it must be for the gay rights movement.