Earlier this morning, the California Supreme Court released its decision in the marriage cases. It’s been pretty clear for a while that they would uphold Proposition 8 and refuse to nullify existing marriages. I’d like to talk about why that is not necessarily a bad thing, a position that I know is sort of unpopular, but which is not an endorsement of bigotry or stupidity, qualities I don’t actually think California’s citizens are guilty of en masse.
You wouldn’t know that, by the way, if you, like me, worked in the State Building, where the Supreme Court is located. The sign-waving people were out in force this morning. But then they always are. Today, they were hating California’s gay and lesbian citizens. Last year, it was women who wanted abortions. A few decades ago, it was African-American Californians who wanted a decent public education. All they do is switch out the slogans and pictures — but the message is the same. Those who are different are scary and hateful.
But those people are so clearly a minority. Having skimmed the court’s opinion, it’s obvious from its tone that the court feels no sympathy for the social views of those who passed Proposition 8. In fact, their earlier opinion in the marriage cases, the opinion in which they announced that the California constitution is violated when marriage is made unavailable to gay Californians, makes their views about the civil rights issue quite obvious.
I’m not sure what I’d have done if this was MY issue to deal with, but I’m going to guess that their limited view of their role in this debate is not a tragedy. Look at one of the great civil rights decision of the 20th century, Brown vs. Board of Education, and then ask yourself whether the public schools in the United States are still segregated and you will see the limits of a court’s ability to change the way Americans think about those who are different. Judicial efforts to integrate the schools have not been huge triumphs, at least not at the local level. Even in a city like Berkeley, where I live, the public schools, particularly in the lower grades, are largely filled with children from poorer households, children who are overwhelmingly African-American and Hispanic.
Why is this? It’s complex, but my guess is that parents — even in places like Berkeley — didn’t like being told to drive their children across Berkeley to kindergarten. And they are no more comfortable with racial and economic differences than their counterparts in less obviously liberal communities across the country, a discomfort that cannot be mitigated by a judge telling you that you must ignore your fears. This discomfort can only change with familiarity with difference and good will — something we are all capable of, I’m certain. When California’s generous financing of public schools was dismantled by Prop. 13, private schools became even more attractive to wealthier, white Californians, and gave well-meaning, liberal, white people cover for pulling their kids out of public schools, and, well, there you have it, a story that’s true across the country and one I think is still being told.
My point is this: there’s only so much the judiciary can do and California’s Supreme Court has done about all it feels institutionally capable of doing. It’s announced an important principle, one that isn’t popular with some Californians. The thing to remember is that our attention is now very much focused on this issue in a way that it hasn’t been for decades. And most of the people who are now thinking about whether it’s okay to say gay people can’t marry are not in front of my building wavy nasty signs. They’re thinking about how Mr. Sulu from Star Trek married his partner last year and how they’ve always liked him and that show. Or about the teacher at the school where their kids go who got married last fall and looked really cute in those pictures where she was wearing a tux, and really, why shouldn’t she wear a tux? I think it’s undeniable that we have begun to see that we are not so different from each other after all.
Today the message is really that the courts cannot force social change to happen, not alone, anyway. The thing to focus on is that the people can do and should do a lot more than the judiciary in this area. The Proposition 8 opponents ran a poor campaign. Much thinking needs to be done about how to run a better one. It’s clear that the majority of Californians did not support Proposition 8. They need to make that point much clearer, the next time this issue is on the ballot.
And then somebody really needs to think about the wisdom of running our state government through initiative, an experiment in populism that has so obviously failed us — everywhere you look, you can see how California’s institutions have been weakened and even ruined because of whimsical and short sighted initiatives — Proposition 13 being the most obvious. A proposition that bans the whole initiative process is looking very good to me at this moment.
There’s more to be said, and more will be said, on this issue. But I am going to guess that in the next five years, there will be another initiative, one amending the constitution to reflect the views of most people in California and that initiative will not look like Proposition 8.