Voters versus the courts, the lessons in California's Proposition 8

Keith Boag on the political and legal lessons from California's fight over same-sex marriage.

For two cold weeks in January, a Federal Court in San Francisco heard arguments about whether the right of same-sex couples to marry could be taken away, as it was, by the referendum known as Proposition 8.

Throughout that historic trial, supporters of gay marriage re-enacted every syllable of the testimony as faithfully as they could, videotaped their performances and posted them on the internet at

What was taking place in court, they said, deserved as wide an audience as possible.

At the same time, Prop 8's backers took the opposite approach and ducked whatever attention they could.

A Stockton, Calif., man lends his support to gay marriage outside City Hall in San Francisco in August 2010. On Aug. 4, Judge Vaughn Walker struck down the California same-sex marriage ban, known as Proposition 8, and the case was immediately appealed to the federal Ninth Circuit Court of Appeals, which this week put off a formal hearing and any resumption of gay marriage until December. (Ben Margot/Associated Press)

They sought and won an injunction at the U.S. Supreme Court to prevent broadcast of the trial and several of them changed their minds about testifying when the trial began.

It's easy to see why both sides behaved as they did.

Anyone who followed the trial closely or looked through Judge Vaughn Walker's 136-page ruling earlier this month that Prop 8 is unconstitutional, will recognize that those who opposed same-sex marriage brought pathetically weak arguments to their cause. At times, they looked ridiculous and foolish.

For example, they argued that the state has an interest in protecting procreation, and that gay marriage posed a threat to procreation.

But when asked what that threat is, counsel for Prop 8 answered: "Your Honour, my answer is: I don't know. I just don't know."

Prop 8's lawyers went on to argue that "responsible procreation is really at the heart of society's interest in regulating marriage." Yet, when asked for evidence to support that claim, one replied: "You don't have to have evidence of this point."

Direct democracy

There was more fumbling as those defending the referendum tried to explain why traditional couples make better parents than same-sex partners even though the case had nothing to do with parenting.

Prop 8 was only about marriage. Gays and lesbians have long been able to adopt in California and Prop 8 didn't attempt to change that.   "Expert" testimony about the superiority of opposite-sex marriages over same-sex marriages was judged not to be expert at all and given no weight.

Throughout the trial, the baseless assertions and feeble responses to straightforward questions underlined the fundamental difference between a real court and the court of public opinion.

The referendum campaign two years ago overturned a California Supreme Court ruling that recognized gay couples right to marriage.

During the campaign, Prop 8 proponents were free to lie and they did, or at least some did, enthusiastically spreading the most hateful slanders imaginable.

In court, they were under oath and cross-examined.

That fundamental difference points to some real dangers in direct democracy and for California's ballot initiatives.

Simply not true

Dr. Hak-Shing William Tam, an official with the Prop 8 campaign told voters in 2008 that, after legalizing same-sex marriage, gays "want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children."

"Every child, when growing up, would fantasize marrying someone of the same sex," he wrote in a pamphlet. He also claimed that, in the Netherlands, polygamy and incest had been legalized as a consequence of allowing same-sex marriages.

In court, Tam was less expansive. In fact, he was downright hostile to his own case. He asked to have his standing as an official intervener in the suit revoked so that he wouldn't have to say anything about his role in the Prop 8 campaign.

But Judge Walker blocked that escape route and eventually Tam testified, admitting that the claims he had made during the Prop 8 campaign weren't true.

The public knows best

None of this would have unfolded as it has without direct democracy and what are known as California's ballot initiatives, the election year referendums that allow voters to propose laws and force their government to enact them.  

In California ballot initiatives and direct democracy are revered. The wisdom of the voting public is romanticized and the legitimacy of its ultimate authority is rarely questioned.

In the past, voters have used ballot initiatives to make tax law, force immigration reforms, legalize medical marijuana and overturn affirmative action, among many other things.

But by banning same-sex marriage, the voters used the strength of their majority to take away rights from a minority that the California Supreme Court had just recognized as a "suspect class," meaning a group that is understood to be the target of discrimination.  

Such a class is entitled to the most vigilant protection. That means that any initiative to discriminate against them must undergo the analyses of "strict scrutiny," the toughest standard of judicial review in U.S. courts.

Gays and lesbians certainly did not get anything like that protection in the campaign to ban same-sex marriage. There was no requirement for "strict scrutiny" of Proposition 8.  

Instead, California's Supreme Court and its legislature stepped aside and left gays and lesbians to the will of 52 per cent of the population, many of whom may have been persuaded only by the exaggerations and falsehoods that characterized the Prop 8 campaign.

The consequences of appeal

Because the government of California refused to defend Prop 8 or to appeal Judge Walker's decision of Aug. 4, the proponents of Prop 8 themselves intend to make the appeal.

That's unusual because the Prop 8 trial was a civil case between two gay couples and the state of California. Prop 8's backers had intervener standing only; they were not defendants.

The gay couples who sued might well ask why anyone but the government should be allowed to take you back to court on appeal.  

Judge Walker has written that he doubts whether Prop 8's proponents have standing to appeal a decision that has no direct impact on them. But there are legal scholars who argue the case is simply too important not to find its way to the U.S. Supreme Court.

If it gets there, the Supreme Court could decide that Prop 8 is unconstitutional and that gays and lesbians have the same right as any other citizens to marry whom they choose — a ruling that could have broad implications beyond the obvious one, that gay marriage would be legal across the country.

The justices could, for instance, also have a word or two to say about the limits of ballot initiatives and direct democracy when they conflict with fundamental rights. Even in California.