ON WEDNESDAY, May 26, the day after the California Supreme Court issued its ruling sustaining the voter-initiated, state constitutional amendment banning gay marriage, streets all over the west side of Los Angeles were barricaded and traffic was stalled. Stuck in our cars, many of us leaned out of the windows in the hope that they were anti-Prop. 8 demonstrations. No such luck. The president was in town. The evening before, a small demonstration of about 100 from UCLA held up traffic at the important intersection of Wilshire and Westwood, but only for a brief time.
In the history of civil rights in this country, public demonstrations and court and political actions have always interacted powerfully. But in what order–and to what end? As supporters of the right for same-sex marriage debate what to do next, all eyes seem to be turned either to the courts (in the hope that the U.S. Supreme Court will hear an equal protection case) or to the state initiative and referendum process (in the hope that there will be a reversal of popular opinion in favor of gay marriage). Both routes pose serious problems.
Earlier this month the electorate rejected a series of referenda initiated by the California governor and legislature that were meant to ease the state’s terrible budgetary crisis. The electorate seems in a sour mood with respect to the initiative and referendum process, inclined to use this century-old experiment in direct democracy mostly to reprimand elected officials and nay-say their actions. (In California, it is easier to amend the constitution than alter tax law; at present, the constitution is burdened by over 500 amendments.) At this point in history, a repeat referendum hardly seems the right way to go about initiating a dramatic change in intimate social practice.
Looking to the judicial system seems to be an equally dangerous gamble. There can be no more appeals to the California Supreme Court. By weighing in on both sides of the issue, the court bears considerable responsibility for setting up the controversy–first by ruling that legislative prohibitions on gay marriage were unconstitutional and then by ruling that the constitutional amendment designed to overcome the initial ruling by prohibiting gay marriage could stand. (The issue here was whether writing a ban on gay marriage into the state constitution was a major or minor change. The former would have required a super majority from the voters. The court ruled in favor of the latter–hence supporting the voters’ initiative.)
The only judicial route left is the U.S. Supreme Court, where gay marriage supporters can challenge the state constitutional provision for its violation of the Fourteenth Amendment guarantees of due process and equal protection. In one of the stranger developments of the last week, the two antagonists of Gore v. Bush, former Republican Solicitor General Ted Olsen and David Boies, who delivered the final argument for Gore, announced that they were joining forces to bring a due process case into the federal courts.
Most long-time gay marriage strategists are highly skeptical of this move. They ask whether such a case is likely to have a positive or negative outcome. To put it in terms of the civil rights history which is so often invoked here, will the outcome produce a Brown v. Board of Education outcome, asserting the equal right to marriage, or a Plessey v. Ferguson ruling, relegating gay equal rights to constitutional backwaters for a long time to come? To figure this out requires determining where this particular moment lies in the process of change in popular opinion on gay rights: Are we nearer to the beginning? Or nearer to the end?
IN THE process by which a society breaks out of its historic blinders and accepts new groups of citizens, new standards of justice, and new definitions of civic morality, popular social movements and grassroots protest play a crucial role. The odd thing about the California campaign is that the popular actions came after, rather than before, the elections and court decisions. As such they enact frustration with what has already happened rather than a vision of a future that might be different. In the months leading up to the vote on Prop. 8, the gay movement conducted a mild-mannered, even meek propaganda effort–mostly television advertisements that spoke vaguely about the importance of non-discrimination in the American tradition. Looking backward, virtually all parties agree that this approach was a mistake and that it fell victim to a last-minute onslaught of attack ads (funded largely by out-of-state Mormon money) that declared that California’s children were going to be taught the desirability of gay marriage in their classrooms.
Immediately after the election, however, spontaneous demonstrations broke out around the state, frustrated as much by their orchestrated silence during the campaign as by its outcome. In Los Angeles, more than a thousand pro-gay marriage demonstrators protested in front of the Mormon Temple on Santa Monica Boulevard, followed by larger gatherings around the state that weekend. The pattern was repeated this month. Supporters of gay marriage held their breaths for the court decision, and when it ruled against them, they marched in protest after the fact. Needless to say, the emotional register in which all this activity took place was bitter and angry in striking contrast to the demand of gay marriage itself, which concerns the right to love.
All of this is understandable, of course, but is it a productive? Demonstrations, public protest, and grassroots action do the most good when they precede the open politicization of fundamental social issues, especially issues that touch how people define themselves and organize their intimate and family lives. The history of the civil rights movement of the 1950s and 1960s shows the wisdom of this approach, mobilizing as it did the deep ethical logic of non-violent civil disobedience, to make clear on what side coercion, immorality, and violence actually lay. Lacking this approach, progressives and civil rights activists are vulnerable to contemporary right-wingers who are extremely adept at turning the tables and making themselves look like the victims and progressive social movements the bullies.
There are now warring demonstrations in Sacramento, supporters and opponents of Prop. 8 lined up against each other in angry and offended stasis. Is there any other way to proceed? Perhaps hope lies in the upcoming generation, young people who have strikingly more tolerant attitudes toward homosexuality than their parents and who may find more creative ways to change the terms of public debate. As a harbinger of things to come, consider the election of Sergio Garcia, an eighteen-year-old gay, Latino student, as Los Angeles Fairfax High School’s prom queen. Garcia ran his campaign with a perfect balance of light-heartedness and serious-mindedness. Here, just possibly, may be the hints of a future gay protest politics in a different and more promising register.
Ellen Carol DuBois is professor of history at UCLA and co-author of Through Women’s Eyes: An American History.