Scott Kaiser

Why Prop 8's Passage Could Be A Good Thing

Filed By Scott Kaiser | November 17, 2008 12:30 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: Barack Obama, California, Congress, HRC, LGBT civil rights, love, marriage, New Jersey, Prop 8

Yes, Prop. 8 passed in California as we're all aware, and the sky is falling. Gay marriages have been outlawed in the state in a blatant display of homophobia infecting politics. This is the worst possible thing to happen to the equal rights movement for gays and lesbians in at least ten years or more.

Or is it?

Sure, there are a lot of reasons of to be upset Prop. 8 passed in California. I do not need to spell them all out for you here. Many of you are already aware of the consequences of writing discrimination into the state constitution because it has already happened in your state. But while on the surface it looks like we were dealt a setback in our quest for marriage equality, I am beginning to realize that Prop. 8 may yet turn out to be a good thing. Before you think I'm some self-loathing homophobe myself, let me explain.

First we need to look at overall public opinion on gay equal rights. According to some statistics provided to me by the fine folks at the Human Rights Campaign:

  • 62 percent of Americans believe "homosexual couples" should have the same legal rights as married heterosexual couples regarding health care benefits and Social Security survivor benefits.1
  • 60 percent of Americans believe there should be health insurance and other employee benefits for gay spouses.2
  • 55 percent of Americans think there should be Social Security benefits for gay spouses. Since 1994, support for spousal Social Security benefits for same-sex couples has ranged from 47 percent to 68 percent.2
  • 60 percent of Americans believe there should be inheritance rights for gay spouses.2
  • 57 percent of Americans believe gay or lesbian couples should be allowed to legally adopt children.4 Support for allowing gay or lesbian couples to legally adopt children has almost doubled over the last 15 years.3

Here's the biggie though:

  • More than half of Americans - 54 percent - agree that "homosexual couples" should be allowed to form legally recognized civil unions, giving them the legal rights of married couples in areas such as health insurance, inheritance and pension coverage.5

Looking at these polls (which were all done before Prop. 8's passage by the way), it is easy to see that the majority of Americans do believe that gays and lesbians should be allowed the same basic legal rights as their straight counterparts. It would seem that the hang-up comes down to the word "marriage".

In the days following the election as the giddiness over Obama's victory began to subside, America began to realize just what happened in California and what the implications of it were. I received messages from straight friends all over the country expressing dismay that such a measure could have been approved by voters especially in California of all places (and also Arizona where I live). Being heterosexual and not having their marriage rights threatened, many of them didn't realize what the situation was for us. They thought we would always have liberal safe places like California and New York where we could live without discrimination. Prop. 8 opened their eyes to the power of our opposition. Not that we were looking for it, but we finally won our fair-minded straight peers' sympathy. Their eyes were opened to the bigotry that exists, and we now have new allies in our equality fight from coast to coast.

Prop. 8 has also fired up the gay community like never before. While I still am a bit miffed that there wasn't a national outrage when similar anti-gay marriage measures passed in other states, the anger over this particular defeat has united the GLBT community in a way that I haven't seen since the 1993 march on Washington (I should remind those blaming the black community for Prop. 8's passage that Rev. Jesse Jackson spoke at that march). Now I am witnessing gay friends of mine who have never been active with any cause getting involved, and if the rallies taking place all over the nation are any indication, they show we are indeed a force to be reckoned with. We will not be silenced or ignored.

When I take into account the media attention this issue has been getting, the overall public opinion on legal rights for gays, and our righteous indignation and determination, I feel we have a chance to push for and win real and lasting equality. Come January there will be a new President and Democrat majorities in both the House and the Senate. We need seize this opportunity to press our newly-elected government to pass a bill that establishes nationally-recognized civil unions providing the same legal protections of marriage to same-sex couples.

Why civil unions? Why not marriage? As Prop. 8 has proven, as long as the word "marriage" is involved it will always be a contentious issue and one that our opponents will bitterly fight. In true equality shouldn't we be able to call it marriage? Yes, I fully agree that we should have the right to marry the one we love, but let's be practical. Legislators in the new Congress are much more likely to pass a bill for civil unions whereas they would probably vote down one allowing same-sex marriage. Wouldn't it be better to have nationally-recognized civil unions whose legal protections won't change from state to state than some states offering marriage, some offering civil unions, and most offering absolutely nothing at all? Besides, once civil unions are in place and straight America sees it did not destroy their marriages or bring about the collapse of western civilization, we should revisit the issue and show them that changing the wording to "marriage" really would have no effect on their lives.

I do not advocate that we give up the fight for marriage, but let me give you my perspective as someone who has skin in the game. Nearly thirteen years ago my partner and I met, fell in love, and shortly thereafter made a lasting commitment to one another. Our relationship has been no different than that of a marriage. We laugh and fight like any other couple, and we don't need the government or any religion to tell us our bond to each other is valid. Calling what we have a "civil union" or "marriage" isn't going to change a thing between us, but we still do seek the legal rights marriage provides. With each passing day I worry more and more that something might happen to one of us where the lack of laws protecting our relationship will become an issue. I'm not willing to wait another ten years or more for those rights while people quibble over the terminology. Civil unions may not be the ultimate answer, but they are something real and within reach now.

I then hereby call on the leaders of the gay community, those in places like the HRC, the National Gay and Lesbian Task Force, and other such organizations, to drop the strategy of fighting for marriage equality on a state by state basis. Prop. 8 in California proved that strategy does not work. Instead I ask them to petition Congress and President-elect Obama to enact a national civil unions bill. This is what I personally will be fighting for, and I urge the readers of The Bilerico Project to do the same.

We are one community, one nation, and we need justice and equality for all of GLBT America.

Special thanks to Emelia Ingersoll at the Human Rights Campaign for providing the figures cited in this post.

1November 2003 L.A. Times poll
22004 Newsweek poll conducted by Princeton Survey Research Associates
3Princeton Survey Research Associates and Newsweek
4May 2007 CNN and Opinion Research Corporation poll
5December 2007 ABC News/Facebook poll by TNS

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We don't need civil unions that are not portable.

We need marriage, which is.

Scott Kaiser Scott Kaiser | November 17, 2008 2:22 PM


You miss my point. I am advocating for a national civil unions bill which would be the same no matter what state a person lived in.

Again, it's not the ultimate answer in equality, but it's something within our reach now.

We don't have to give up the fight for marriage, but if civil unions would give us most legal protections of marriage, shouldn't we take this opportunity to get them passed? They could serve as a stepping-stone to full marriage equality and would provide immediate benefit to gays and lesbians all over the U.S.

Well Scott, some gays and lesbians are not willing to accept the same idea of incrementalism that they want transgender people to accept. You will get a lot of people whining that it's marriage or nothing. Guess what, it has become nothing in most of the country. Some gays and lesbians are not able to practice what they preach, and now, because of that, we're 39 states in the hole. It's interesting to note that there are far more states that have transgender employment protection then accept gay marriage. Stands to reasons, when more Americans are willing to protect jobs of LGBT people then accept gay marriage.

If gays can wait for an inclusive ENDA, then they can wait for FULL marriage, not Marriage Lite.

Scott Kaiser Scott Kaiser | November 17, 2008 3:06 PM

Just for sake of context, are you currently in a relationship? If so, for how long?

Something could happen to either my partner or me any day, and we have no protections whatsoever. As I mentioned in my post, I'm not willing to wait for those benefits while people quibble about terminology. Although I think we will ultimately prevail in our fight for marriage, I see that day as still being many years off. Why not have civil unions and their benefits in the meantime until then?

Because once you pass civil unions, the step to marriage will be much harder than waiting for marriage. They'll be able to argue that we already have the benefits, that now we want to usurp the word from its supposed religious context. Just like a non-inclusive ENDA, it'll take much longer as a stand-alone issue.

Yes, I recognize my relationship isn't too long-- 5 years-- but I refuse to budge on this cultural war. I will not be treated differently.

Terminology has meaning. The same argument could have been made for the bus seats. They all were seats, so why complain about being in the back? It's a matter of dignity; and after all the attacks on my dignity I've had to go through in my life, I will not let them walk over it on this issue.

Scott, I understand where you're coming from. I only wonder if it's still too soon for federal action on this. I understand the concept of baby steps--get what we can now to reduce the distance we have to travel later. Unfortunately, our own history with other civil rights issues has proven that separate is never equal, so a separate instution that does the same thing won't be enough, and we already know it. Further, even if it were, why create separate institutions--more government programs--that intend to do exactly the same thing? Nevertheless, I would ask this: when people finally realize that civil unions aren't the same and therefore not enough, how much harder will we have made it for ourselves trying to convince the opposition of it?

In 1992, Bill Clinton was elected after saying he would allow gays to serve openly in the military. When he realized he couldn't get full equality, he compromised and we got "Don't Ask, Don't Tell." We have been living under DADT for 15 years, which--despite increasing numbers of legal challenges--has managed to hold up, and the resulting conditions for gays serving in the military has been, in many ways, worse than before DADT. I believe this is largely due to the opponents of gays serving openly in the military lauding DADT as adequate and achieving the purpose of allowing gays to serve, which--at least in theory--it does.

I agree that the passage of Proposition 8 brought the reality and effects of America's permissive discrimination against same sex-couples--and the LGBT community in general--to a national (and, arguably, international) scale. Had it failed, we would not have had the nationwide attention to our fight. People would have written it off as another example of liberal California politics and continued to live under the delusion that gays will be fine because they have places like California to live in.

Look at our history over the past few decades and you'll see that where once it was perfectly legal to deny housing or employment based on sexual orientation, most major corporations explicitly outlaw such discrimination. We have domestic partnerships, civil unions, and marriages being legalized in more and more locales.

Marriage has always been left to the states. The only federal involvement prior to the Defense of Marriage Act was that states had to recognize unions formed in other states.

My recommendation for the road ahead? Repeal DOMA and put the federal government back where it was, requiring states to honor marriages (of whatever kind) in other states. Next, encourage the states to continue fighting on their own for marriage. They'll come to it as the states are ready, which all signs indiciate is happening at an increasing rate.

Legislating the rights of the minority using popular majority voting will never turn out the way we want it to, so I think the ultimate answer will come from the courts. Legal cases like the one that inoverturned Proposition 22 in California and the four filed in California to overturn Proposition 8 will continue to be found in our favor--in courts where minorities' voices are heard judiciously. Like Lawrence v. Texas that ruled every state's sodomy laws unconstitutional, one of these might just do the same.

Scott Kaiser Scott Kaiser | November 17, 2008 4:22 PM


You make some good points. As a matter of context, could you tell me what state you live in? I only ask because I notice that GLBT citizens in more restrictive, conservative states tend to have different opinions than those from more liberal states like New York and Massachusetts (and formerly California too).

As for the courts, was the Texas sodomy law in their constitution? Correct me if I'm wrong, but I don't think it was. The U.S. Supreme Court is going to be very reluctant to overturn a state's constitution, and legally I don't even know if they can. Also, the courts of the state cannot overturn the law if it is written into the state constitution. They can only review it from a procedural standpoint, e.g. was the voting process establishing the law correctly followed? Does the law clearly outline requirements regarding marriage, etc. That's why our opposition was so adamant about getting it written into the state constitution. It gives us much fewer court options. In fact in Arizona, they campaigned Prop 102 based on that. Same-sex marriage was already illegal here, but they advertised that "activist judges" could override that without a constitutional amendment.

I live in California.

You're right that the Texas sodomy law wasn't part of the state's constitution; my intention in citing it was to highlight an example of a court case raised in one state with national effects.

[California is significant here because the 14th Amendment rights of same-sex couples have been demonstrably affected. Unlike other states (specifically Florida and Arizona) where marriage wasn't previously legal, same-sex couples in California were previously allowed to get married.]

Here's my theory on the constitutional angle: States can have their own constitutions, but they aren't allowed to contradict the federal constitution. No state could amend its constitution to allow slavery since the federal constitution prohibits it.

If the suits in California are able to invoke the equal protection clause to invalidate the Proposition, a Supreme Court ruling could have the national effect of invalidating other laws banning same-sex marriages, or even, by extension, making those state constitutional amendments federally unconstitutional--despite the fact that the case was brought on the procedural issue.

Reformed Ascetic | November 17, 2008 11:38 PM

Please forgive me for interjecting, but, like Matthew, I suspect the legal appeals in Claifornia may well have greater consequences than a win on 8 would have. Legal history shows California setting many precedents that were exported not only to other states, but also to the federal level.

I generally agree with you that civil unions should be given greater priority as a national project, at the very least because they provide material benefits that many people really need (and because of some subversive potential, but I won't get into that now). Also, just to follow up on Lucrece's comment, the existence of a civil union system has had no discernible effect on the outcome of marriage equality decisions. The Connecticut and California Supreme Courts both explicitly addressed whether denying the name "marriage" alone to same-sex couples was a equal protection violation, and both answered in the affirmative. Having a civil union system in place may actually make it easier to get to marriage from a legal perspective, because any argument that the state needs to allocate rights to encourage a particular family form are strongly undermined where all the benefits of straight marriage are already given to same-sex couples. All that remains is a desire to denominate same-sex couples as second-class citizens and/or religious animus, both of which are unconstitutional.

Scott Kaiser Scott Kaiser | November 17, 2008 4:25 PM

My personal belief is that the government should only offer civil unions regardless of whether you're gay, straight, etc.

Marriage can then be a religious ceremony. If a church wants to marry two gay people (and some want to), then they can make that decision, but it won't mean a thing legally.

That solution is impractical though at this point as mainstream America will *never* let us reclassify their marriages. Maybe someday in the distant future, but not anytime soon.

You might want to check out Robin West's book "Marriage, Sexuality and Gender" which examines the institution of marriage from many different perspectives (queer, feminist, utilitarian, natural law, etc.) and ultimately concludes that the marriage equality movement should be redirected towards civil unions for all.

Scott Kaiser Scott Kaiser | November 17, 2008 5:28 PM

I'll check that out. Thanks!

I would agree with you here. For me, the ultimate solution is a true separation of church and state, achieved by removing the implicit bond between the religious ceremony and the civil proceedings. Because we blend them--most notably by referring to the two institutions by the same name--people don't realize they are actually separate things. In my observations of the proponents of Proposition 8, they clearly see both "marriages" as one and the same. I think there are more of us who don't, but we're now talking semantics that are far too subtle for Joe the Plumber to appreciate.

There were plenty of people during the sixties and seventies in this country who rebelled against the institution of marriage and chose to instead become "life partners" or just cohabitate. But even these radical thinkers eventually realized that marriage was the only way they could get the same legal benefits for their relationships. Some were able to invoke the idea of "common law" marriages, which are off-limits to same-sex couples as well.

The proper solution, in my opinion, is to distinguish the two institutions: religious (or sacred) marriage by the church and civil (or secular) marriage by the state. A priest can't perform a marriage that will hold up without a legal license and certificate, and having a license doesn't mean you won't damn yourself by breaking your vows. Delineating the separation between the two institutions means that the religious folks don't have to worry about anyone's "marriage" outside of what ceremonies they wish to perform in their own churches, and the state doesn't need to impose anything other than a simple definition: two people bound by a legal and civil relationship.

I dont believe it some one who finaly gets it.Mention marraige and let the people vote we lose every time.Mention Civil Unions it puts them to sleep oh that yeah have all the rights of the word we wont mention but mention it and they all freak out.Well written Scott and now lets get Civil Unions with teeth and move on to the important matters Hate crimes bill all inclusive ENDA etc.Otherwise if we just bogg down on marraige then we all will continue to lose and were losing allies as we continue to whine about how we lost and who voted against us etc etc etc.For the record im Trans and yes this is a Trans issue as long as you keep harping on it and only it Trans folks will continue to get there rights pushed to the dump of things we want as a group.

Scott, I'm rejecting your call for action because you clearly haven't thought it through. You're welcome to reply to the following objections here, or at my blog, whatever, but you don't have answers I'm sure.

1) Your suggestion that we can get a civil unions bill through Congress, without amendments that reduce the status to a right to shared gym memberships and remains disposal, is laughable to anyone who has been engaged in the state by state battle to get relationship recognitions passed. Not to mention just plain insulting to how draining, difficult and challenging it is to get anything at all through a legislature.

Did we pass any form of ENDA while I was at work today? If not, explain your plan to get the civil union bill to law, and how you'll kill it to prevent couples from getting the gift of needing a lawyer to determine which prevails, the state law or the federal law with lesser benefits.

2) Beyond that practical impediment, you have well over 50,000 married couples who are enjoying the benefits of equality with their neighbors to address...will your plan call for all of them to get a free downgrade to civil unions? What's the strategy for resisters who want to remain married?

3) Finally, whose version of the 50 forms of marriage currently in force throughout the nation will your civil union bill use as a standard? Does it include community property, child custody preferences, or alimony just to name a few common disparities in divorce rules? And what court will administer this federal scheme? I don't really think it's practical to ask the US Attorney's office to open a pro se divorce counter, but state courts can't do it.

Consider your call rejected by those who know what's involved in family law, passing legislation and/or the court system. But thanks for getting involved in politics!

First, I don't believe for a moment that the HRC polls reflect reality. The initial poll on Prop 8 indicated that something like 58% of the likely voters opposed it. Remember all the rosie headlines and bloglines?

All of our feel-good street-dancing notwithstanding, the opponents of gay rights are getting a lot of mileage out of their 4 big wins on election day. FL banned gay marriage and domestic partnerships and more. Arkansas banned adoption by unmarried (primarily gay) couples. "Liberal" California rescinded rights, and Arizona reversed the only blot on the anti-gay record.

All this is being pitched as a democratic groundswell against the entire "gay agenda," and the argument resonates with a lot of people who are not particularly homophobic but have a simplistic but sincere respect for "the democratic process." This is going to make it suicidal for most Congressmen and Senators, and for Obama, to push any significant gay rights legislation. Obama can do a lot with appointments and executive orders, but we are going to have to keep depending on the courts to protect our rights until we can unite and mobilize before election day and actually win one at the ballot box.

As an aside--I've only met one Tristram in my life-- do you live in Berkeley?

Reformed Ascetic | November 17, 2008 11:54 PM

I would also like to add that I believe fighting for full marriage equality makes achieving other ends (like CUs and DPS) easier. I also think it makes it easier to get other laws passed to assist those not in marriage-like relationships.

Personally, I accept the pragmatism of incrementalism is true in many cases. I certainly want your family to get something that helps to protect you as soon as possible. But barring completely overhauling the system and changing things for everyone, full marriage equality seems like the thing to ask for in this line of argument.

It is foolish to begin negotiations by asking for something you clearly cannot get. But it is even more foolish to start negotiations at less than what you want.

I believe the gay marriage equality activists made a tactical error in attaching to the word "marriage." I think the LGBTQ community should have striven for nationally recognized civil unions not just for us, but EVERYBODY. And by this I mean, that two people who wish to have the rights and responsibilities generally conferred by "marriage" would instead have a civil union administered by the state, regardless of gender.

I have long advocated letting The Church have the word marriage; it is such an emotionally loaded word, and we should rather spend our energies on getting equal relationship rights across the board. Then, everyone would be subject tot he same civil ceremony that confers the same rights regardless of gender.

Let the church have the word "marriage" and be done with it; clearly the public supports us in our relationships (according to above poll numbers), the only hang up is the word "marriage." I'm fine with "domestic partnership" or "civil union" or "purple people eater" as long as EVERYONE has one of the same thing, too, and all rights are accorded equally.

"Americans are willing to protect jobs of LGBT people then accept gay marriage."

I agree with Monica's thoughts above, but isn't this compartmentalization of legal rights part of the insanity?

I cannot be the ONLY person who lost a job due to a lack of marriage protection; a classic Domino Effect. Inequality in divorce often leads to one party "getting the fuzzy end of the lollipop", which can translate into welfare and a host of psychological problems (like PTSD) that directly affect one's ability to work and function.

I still doubt ANYONE will care about our lives if they do not care about our FAMILY. Would YOU care about my job if you ignore the family, children, and housing that job supports? Would YOU care about my desire to serve openly in the military if you want me to hide my spouse from you and also LIE about it? Would YOU care about my desire to adopt other's children if my OWN husband & children are not even COUNTED as a family in your 2010 census?!

Here what will be interesting about our civil rights movement; we will ALL react very uniquely, following our hearts, minds, and souls. Given my own experience I can ONLY focus on my own Equality Tax Protest here at home, and suggest others do the same (BTW - I seriously do NOT care if anyone agrees with tax protest; I cannot accept this "legal reality" while simultaneously being tax compliant. I Won't.

Scott, I agree with you in part.

I want the word MARRIAGE used because it eliminates "US and THEM.
I am sure you understand SEPARATE is not EQUAL!!!!