Election Days 2008 and 2009 proved to be largely disappointing ones for gay (2) rights advocates, and specifically supporters of civil same-sex marriage rights in the United States. Although Election Day 2008 brought the historic civil rights milestone of the election of the first African American president, it also brought with it the passage of statewide ballot initiatives targeting the gay and lesbian minority in four states. Voters stripped gays and lesbians of the civil right to marry in California, after all three branches of state government had affirmed the right and 18,000 Californian same-sex couples had exercised it. (3) Voters also prohibited gays and lesbians from adopting or serving as foster parents in Arkansas, prohibited the civil recognition of same-sex marriage in Arizona and banned both civil same-sex marriage and any "substantially equivalent" relationship in Florida. (4)
The Election Day 2009 results were more mixed overall, but no different with respect to same-sex marriage. Maine voters, who had been expected to make the state the first to uphold civil marriage equality through a ballot initiative, ended up voting in favor of a ban. (5) Maine's defeat of same-sex marriage represented the thirty-first loss at the ballot box for same-sex marriage. (6) By contrast, voters in Washington State approved what was popularly referred to as an "everything but marriage" statute, granting same-sex couples many of the civil benefits of marriage while withholding the right to marry. (7)
Many in the gay civil rights movement reacted to the defeats of marriage equality at the ballot box with understandable alarm and frustration. Others responded with anger and misdirected blame. This Article aims to transcend the superficial analysis of what went wrong and why in the various ballot initiative battles, and turn towards an examination of the deeper lessons proponents of LGBT rights and marriage equality specifically should take from these defeats. My goal is not primarily to engage the theoretical and doctrinal arguments in favor of civil same-sex marriage rights, nor to reconsider whether the gay rights movement should have prioritized the pursuit of marriage equality in the first place. (8) Instead, proceeding from the premise that the struggle for marriage equality is constitutionally, politically and socially compelling, (9) this Article is a meditation on the tactical lessons embedded in the movement's recent electoral defeats, written so that those lessons might inform future plebiscitary campaigns that have at stake the basic rights of LGBT Americans.
With those ends in mind, Section I below provides an overview of what occurred in the various statewide ballot initiative battles in 2008 and 2009 and then describes the preliminary analyses of the reasons for the gay community's defeats. Section II presents five interrelated lessons that the movement should glean from these ballot initiative losses, which, if used to inform pro-gay campaign strategies going forward, should result in better outcomes at the polls. First, I discuss how and why the LGBT rights movement must remedy its failures by incorporating diversity--especially racial, ethnic and class diversity--in its institutional leadership. Second, I propose that the LGBT rights movement engage religious arguments and communities much more substantively and authentically, instead of ceding religious arguments and circumventing faith communities in favor of what may appear to be a more hospitable, putatively secular ground. Third, I examine the need for more LGBT people of color (POC) (10) to share our identities and family lives with other members of our respective POC communities. Fourth, I discuss the need for better and more proactive movement strategies to contend with the new atomized digital media environment, which poses difficult challenges in countering political misinformation, responding to anti-gay defamation and promoting public education. In the fifth part of this Section, I attempt to show that although the gay community's travails in the recent ballot initiative battles illustrate both the dangers of and constitutional infirmity inherent in direct democracy, more strategic and proactive engagement by the LGBT rights movement in direct democratic lawmaking may actually accelerate progress towards marriage equality, both by building favorable support for plebiscitary campaigns and by catalyzing support for legislative and judicial advances. Finally, Section III concludes by discussing the importance of patience and perspective in the movement for LGBT equality.
WHAT HAPPENED AND WHY
The 2008 and 2009 Election Day Results
California Proposition 8 (2008)
In California, voters by a slim margin (52% in favor to 48% against) passed Proposition 8, a ballot initiative that amended the state constitution to prohibit same-sex marriage in the state, (11) Eighteen thousand same-sex couples had already married in California in the six months before Election Day 2008. (12) The outcome became all the more bruising to many gay and lesbian Californians when it was reported that Proposition 2, another statewide ballot initiative proposing to require more humane conditions for the caging of livestock, passed by nearly a two-to-one margin. (13)
California's path to the recognition and ultimate banning of same-sex marriage was an especially circuitous one. In 1971, California's Civil Code was amended to incorporate gender-neutral pronouns, defining marriage as "a personal relation arising out of a civil contract." (14) But in 1977, the Code was amended again to restrict marriage to opposite-sex couples by means of gender-specific language. (15) The voters themselves first weighed in on same-sex marriage in 2000 by passing with a 61.4% to 38% margin Proposition 22, a statutory ballot initiative adding section 308.5 to the Family Code, which essentially restated the already existing statutory language restricting marriage to one man and one woman. (16) Then, in September 2005, California's legislature became the first in the nation to pass a bill recognizing the right of same-sex couples to marry without a court requiring it to do so. (17) Governor Arnold Schwarzenegger vetoed the bill later in the same month, reasoning that in light of Proposition 22, only a new ballot initiative or a state supreme court decision ordering the recognition of civil marriage for gay couples should reverse the results of the 2000 ballot initiative. (18) With a new state legislature elected in November 2006, a new bill providing for same-sex marriage in California was introduced in December 2006 and passed by both chambers (a forty-two to thirty-four vote in the Assembly and a twenty-two to fifteen vote in the Senate) in September 2007. (19) Governor Schwarzenegger again vetoed the bill, this time demanding that the California Supreme Court address the constitutionality of Proposition 22. (20)
On May 15, 2008, in In re Marriage Cases, the California Supreme Court acted on six consolidated cases challenging the state's ban on same-sex marriage by striking down California statutes that restrict civil marriage to couples of different sexes, including the section incorporated by Proposition 22. (21) Writing for the 4-to-3 majority, Chief Justice Ronald M. George found that sexual orientation is a protected status requiting strict scrutiny of any state classifications on that basis. The Court held that the state's same-sex marriage ban violated the state's constitution both by denying gay Californians the "basic civil tight" and the "equal respect and dignity" that is afforded by civil marriage recognition, and by violating its equal protection clause in doing so. (22)
Proposition 8's passage on November 4, 2008, marked the first time a ballot initiative banned same-sex marriage after the right to marry had been extended to and exercised by gay couples. In response to numerous state lawsuits filed challenging Proposition 8, the California Supreme Court upheld its constitutional validity in a May 26, 2009 decision, finding that it was a valid and enforceable amendment to the state's constitution. (23) The decision was not, however, a total defeat for proponents of same-sex marriage, insofar as it upheld the validity of the same-sex marriages entered into before Proposition 8's passage. (24)
Opponents of Proposition 8 encountered a more favorable initial result in a federal constitutional challenge brought by former Republican Solicitor General and conservative activist Theodore Olson in partnership with his Bush v. Gore counterpart David Boies. (25) On August 4, 2010, at the conclusion of a full trial, chief judge for the United States District Court for the Northern District of California Vaughn R. Walker struck down Proposition 8 as unconstitutional and thus unenforceable. (26) Among many findings of fact, Judge Walker noted that "Proposition 8 singles out gays and lesbians and legitimates their unequal treatment." (27) He held that "Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation." (28) Judge Walker repeatedly referred to the failure of the attorneys for Proposition 8 to support their claims with credible evidence. He wrote that "proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage." (29) Unsurprisingly then, he concluded that "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license" and "does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples." (30) The Ninth Circuit Court of Appeals granted a stay of Judge Walker's Order enjoining state officials from enforcing Proposition 8, pending the...