Why Prop. 8 is a losing proposition

In March 2000, Californians passed Proposition 22, making the Defense of Marriage Act law: “Only marriage between a man and a woman is valid or recognized in California.”

Now comes Proposition 8, the California Marriage Protection Act, on the Nov. 4 ballot. This too reads: “Only marriage between a man and a woman is valid or recognized in California.”

Proposition 22 was an “initiative statute”; Proposition 8 is an “initiative constitutional amendment.” In 2000, Proposition 22 won, 61.4% to 38.6%, victorious in 52 of 58 counties. Proposition 8 is most likely going down to defeat in November. All because the folks who brought you Proposition 22 miscalculated in 2000, and now, with Proposition 8, they’ve compounded their error.

Proposition 22, once passed, had the force of law, but, as with all statutes, it was subject to judicial interpretation.

That’s what happened when the state Supreme Court overturned it May 15, ruling that it conflicted with the California Constitution. Writing for the 4-3 majority, Chief Justice Ronald George said, “An individual’s sexual orientation -- like a person’s race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights” -- in this case, the right to marry.

George’s words erased the traditional definition of marriage in California and even negated the state’s legitimate interest in that view, although society -- for rational reasons -- has a stake in that definition.

Ironically, despite their passionate resistance to same-sex marriage, the politically inept backers of traditional marriage made such a ruling nearly inevitable.

In 2000, they knew they had public opinion strongly on their side. They should have framed Proposition 22 as a constitutional amendment, not a statute. Had they made the right call, the traditional definition of marriage would have become part of the state Constitution; it couldn’t have been easily overturned by the California Supreme Court.

Instead, Proposition 22’s backers opted for an initiative statute -- perhaps because fewer signatures were required to get it on the ballot -- and thus invited eventual judicial scrutiny. They also gave the other side what turned out to be eight more years to change public opinion.

They did do some things right in 2000. They ultimately ran an understated campaign that was not so much “anti-gay” as “pro-marriage.” In the end, they asked voters to affirm the status quo -- the long-held definition of marriage as being between a man and a woman -- a moderate and positive approach generally more successful with a risk-averse electorate reluctant to change.

In addition, Proposition 22’s victory margin was magnified because it was on a primary election ballot, and primaries attract fewer voters, who are older and generally more conservative.

Now, fast-forward eight years: Today, the momentum favors same-sex marriage. Polls show that the electorate has become more used to the idea of same-sex marriage; women in particular see it as stabilizing for society, not destabilizing.

And, in the wake of the Supreme Court ruling, homosexuals are marrying at a fast pace. That means it is gay-marriage advocates who are defending the status quo, while traditional-marriage advocates must upset it. At the least, for many voters, the idea of voting against what is already legal could create confusion, and confusion often yields a “no” vote.

And then there’s the matter of timing. Proposition 8’s supporters should have put their remedial measure on a primary ballot years ago. Failing that, they should have started early enough to gather sufficient signatures to qualify the measure for last month’s primary ballot, not the Nov. 4 general election ballot. That’s because with no statewide offices contested, and coming after the high-turnout presidential primary, the June 3 primary was guaranteed to be a low-turnout affair (i.e., older, more socially conservative voters).

On top of that, while no one could have known precisely when the Supreme Court would rule on gay marriage, as it turned out, the May 15 decision also would have energized the traditional-marriage voters who, before the first same-sex marriage licenses were issued June 15, could have stopped the whole megillah by voting for Proposition 8 on June 3.

Putting Proposition 8 on a high-turnout November presidential election ballot is dumb. Trying to pass it once same-sex marriages have become a legal, daily occurrence throughout the state is dumber. And now, if Californians vote it down, conservatives can’t blame judicial tyranny for imposing same-sex marriage on the unhappy masses.

There’s an argument to be made that once this initiative qualified for the November ballot, the court should have stayed its decision and given the people of California a chance to vote on this constitutional amendment. Instead, the mischievous court allowed counties to issue marriage licenses.

Will Californians now vote to render those marriages invalid? I don’t think so.