A Gay Conservative's Take on Prop 8

I am a gay conservative lawyer, who studied constitutional law during law school (though I now work in the tax field), so the issue of gay marriage and what has happened in California has meaning to me on many levels even though I make every effort to avoid ever stepping foot in California.

In short – I’m thrilled that the people of California have put the smack down on the activist gay legal left. Unfortunately, I have no illusions that the people in question will have been properly chastened by the experience.For years, the gay left has tried to frame the marriage question as a new civil rights movement, and has specifically worked towards enshrining marriage as a basic human right. Despite state after state passing marriage amendments they continue to believe their own rhetoric. Prop 8, passed by the people of California – a state seen as one of the most gay-friendly places in the country, will hopefully wake up the gay left to the simple reality – the people of this country do not believe marriage is a right, and they are willing to say so by amending their basic governing documents to make it crystal clear.

The legal avenue was always the wrong route to take for those that sought marriage – it was divisive, and even where successful, served to create lasting animosity. Once gay marriage became a “hot issue” the pursuit of legal actions served to halt any progress the gay community had made on these issues. There had been a time when support for gay marriage (or alternate arrangements like civil unions) was increasing. The legal battles that have been highly publicized over the last decade or so have basically frozen the numbers, and support for marriage has gone no further. The gay advocacy groups had a real chance to win support for their cause and obtain equal privileges (and marriage benefits are just that – a privilege) by democratic means. Though nobody can prove an alternate reality, it would seem that a strategy of political pressure would have produced as many, if not more states, with some form of relationship recognition than exist today, and would have avoided the backlash of dozens of states passing constitutional amendments.

Democrats took control of the New York State Senate yesterday – which was expected. It is also expected that there will be a major push (probably successful) to legislatively change the laws here in New York to expand the definition of marriage. New York would be the first state to recognize gay marriage by statute without pressure from a court order mandating such action. Personally, I don’t like the idea – laws always have unintended consequences, and so too will this one, consequences I’m not sure the people even here in New York will much care for. But I will get my say, through hearings, public meetings, and most importantly, elections. The folks that vote for (and against) gay marriage in the next Legislature will have to face the voters in two years, and some races may become a referendum on the incumbent’s gay marriage vote. Maybe the 2010 elections will see supporters of the change widely re-elected – if so, it will be clear that the people are okay (even if not happy) with the change, and are willing to live with it. And if not, there will be new legislators who can seek to repeal the new laws. That is the way it should be done – and maybe New York will at least provide a template for those who support gay marriage so that they can get out of the courts.

Unfortunately, I don’t think that will happen – mainly because the legal strategy has always been the gay left’s Big Lie. For as long as they have sought to judicially enforce gay marriage, they have told the people (and the gay community) that it was all about obtaining equal treatment – it was about insuring hospital visitation, certain tax benefits, providing a surviving gay partner standing in probate matters, making it harder for disapproving families to challenge a will, access to courts, and a litany of other benefits that come with marriage. The lie has been revealed with the ruling earlier in California and more recently in Connecticut – for if these lawsuits were about benefits, they were unnecessary – California and Connecticut same-sex couples had everything that married heterosexual couples had except the title “marriage” (in CA through “domestic partnerships” in CT through “civil unions”) – and it wasn’t enough. The legal strategy is about erasing the legal distinctions and the alleged “stigma” of those distinctions so that the gay Left can go on to enforce full and complete acceptance of homosexuality upon the populace (by suing you if necessary) and drive those who have actual religio-moral beliefs into hiding (or bankruptcy at the hands of hostile civil juries).

Since that enforced acceptance is not as well served by political change as it is by legal change, the lawsuits will continue. Alas, with the new liberal administration that will take over in Washington, along with the increased liberal majorities in Congress, one can expect that the gay Left will determine that now is the time to expand the lawsuits to the one place that they have always wanted to take them – the federal courts. Watch as the gay Left brings lawsuits to challenge DOMA (if Congress doesn’t rush to repeal it first) and then force states to recognize out-of-state gay marriages. Ultimately, as Obama-appointees fill the federal courts, the goal will be to mount a head-on legal assault to claim a 14th Amendment right to gay marriage that would wipe out in one fell swoop the dozens of constitutional amendments that have been passed by the states. Why work in 50 different court systems when you can get it all done in one case?

So, I applaud the people of California for yet again reinforcing the consistent statement of the American people, whether they live in red states or blue states – marriage is not a right, and it should not be tinkered with by judges. If only the folks that claim to represent the gay community would actually learn their lesson.