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Prop. 8 ruling parallels societal change

Attitudes have evolved rapidly since the anti-gay-marriage measure passed in 2008. Even Republican strategists agree it's time to move on to other issues.

June 26, 2013|George Skelton | Capitol Journal
  • When he was California attorney general, Jerry Brown refused to defend Prop. 8 in court.
When he was California attorney general, Jerry Brown refused to defend… (Rich Pedroncelli, Associated…)

SACRAMENTO — The way I read it, the Supreme Court concluded what increasing numbers of Californians have been saying: that opponents of same-sex marriage can't show any personal harm from two gay people exchanging vows.

The justices wrote in legalese about court "standing," asserting that defendants of Proposition 8 could not prove "a personal and tangible harm" — a "personal, particularized injury" — if people of the same sex were allowed to officially marry.

My late friend Bill from rural Taft used to say pretty much the same thing, if less eloquently. He didn't care what people did "as long as they don't scare the horses."

I totally agreed and voted against Prop. 8 in 2008 when it passed by a 4.6 percentage point margin, amending the state Constitution to read that "only marriage between a man and a woman is valid or recognized in California."

My view, like millions of other people's, had evolved over the years.

I concluded we had much more important things to worry about than what two people living together in a loving relationship were called: "partners" or "married." Some opponents of same-sex marriage argued that it violated God's will. Maybe theirs. My God didn't fret about homosexuality. If gays and lesbians could find comfort and happiness from formal marriage, I figured, let them. Congratulations and best wishes.

That said, the 7 million Californians who voted for Prop. 8 got cheated by state politicians.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown — and later Gov. Brown and Atty. Gen. Kamala Harris — refused to defend Prop. 8 in federal court. They contended the measure was unconstitutional. But no one elected them judge. They took an oath to defend the state Constitution. The governor can appoint judges, but can't become one unless he resigns from office.

Just seems to me this is a major flaw in California democracy. Voters shouldn't simply be ignored when they pass a ballot initiative. For Brown, especially, it's hypocritical after he insisted that the electorate be given the final say on any tax increase.

Because the state refused to defend Prop. 8, the Supreme Court ruled, the initiative's private sponsors had no standing — no legal right — to appeal a lower court ruling that the measure violated the U.S. Constitution. They had suffered no "concrete and particularized injury" from the lower court decision. So it stands.

It's doubtful this issue ever will return to the ballot in California. Gay marriage supporters, now that they've essentially been given a license to wed by the Supreme Court, don't need a ballot measure. And opponents have had their proposed ban ruled unconstitutional.

More important politically, another Prop. 8 probably couldn't pass today even if supporters managed to raise enough money to finance a signature-gathering effort and a campaign.

Public attitudes have changed greatly, every poll shows. Today people are much more tolerant of same sex marriage. Even supportive.

Here's an example:

Before Prop. 8, there was Prop. 22. It was virtually identical, but a statute. It passed with an overwhelming 61% of the vote in 2000. But the state Supreme Court ruled in 2008 that it violated the California Constitution. That led to amending the Constitution with Prop. 8.

Prop. 22's campaign manager was Rob Stutzman, who later became Schwarzenegger's spokesman and is a Republican strategist. Stutzman says he wouldn't run that campaign today. In fact, he now supports gay marriage.

"I've personally become very libertarian," Stutzman, 45, told me. "There's too much emphasis on trying to control people's lives with government."

"Personal relationships matter," he continued. "I've got too many [gay] friends I care about. Marriage means a lot to them. If it really means that much to somebody, why should the state [interfere]."

And politically, Stutzman added, "it's an issue that will hold back the Republican Party in California and nationally…. It has become a real barrier to bringing along younger voters….

"What I'd suggest to conservatives is that as a matter of law and social convention, this issue has moved on. So move on. Put your energies into a lot more important things."

Republican consultant Matt David, also a former Schwarzenegger spokesman, emphatically agreed.

"Republicans have been intellectually dishonest in their application of less government," David said. "There's no better place for less government than when it comes to love."

"If Republicans would quit trying to stop a train that left the station five years ago," David added, "and focus on things they can affect — tax policy, assuring that every child has a quality teacher — then we might actually win a couple of elections and do some good for people."

I asked the top Republican elected official in state government, Senate Minority Leader Bob Huff of Diamond Bar. He concurred.

"Society evolves," he said. "Sometimes it's personal experience that changes perspective. Maybe a relative, or close friend, or just the fact that some marriages were performed here and the world didn't end."

"The Republican Party has been evolving as well," Huff contended.

He noted that the GOP candidate for San Diego mayor last year, City Councilman Carl DeMaio, is openly gay. Republican San Diego Dist. Atty. Bonnie Dumanis is openly lesbian. "It's a non-issue," the senator said.

But the last word must go to Lt. Gov. Gavin Newsom.

As San Francisco mayor in 2004, Newsom issued marriage licenses to same-sex couples even when it wasn't legal. Later when the state Supreme Court did make it legal, Newsom provocatively declared at a rally that gay marriage was coming "whether you like it or not."

It has taken awhile, but Newsom has been proven correct. And more and more Californians like it.

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