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California lying

By Jack M. Balkin

In one of the most depressing developments in this campaign season, California?s Proposition 8, which would abolish same-sex marriage in that state, is for the first time showing a narrow lead in the polls. The shift has happened for the worst possible reasons: the expenditure of large amounts of money for advertisements that were filled with lies.

Proposition 8 is an effort to overrule the California Supreme Court?s decision that same-sex marriages are required under the state constitution. Since the decision, thousands of couples have married in California. The public noticed that many of these couples were very nice people. It also noticed that the sky didn?t fall when same-sex marriage came to the state. All this led public opinion to oppose the proposition by substantial margins.

Recently, though, opponents have saturated the airwaves with TV ads claiming that opponents of same-sex marriage will be sued for their personal beliefs, that churches will lose their tax exemptions, and that ?gay marriage will be taught in public schools? if Proposition 8 loses.

The ads can be seen here and here. Opponents of Proposition 8 have produced videos of their own rebutting the ads point by point, but Proposition 8?s backers have far more money, and the counterarguments aren?t getting through. The campaign for Proposition 8 has actually benefited from the collapse of John McCain?s presidential hopes: as it becomes clearer that donations to McCain are wasted, conservative money tends to be diverted to other causes.

We?re at a delicate cultural moment. Gay people are far more visible and accepted than ever before. Yet old stereotypes and fears persist, and respond to prompting. The only way to fight these prompts is counterprompting, which means paid ads. That costs money.

The enactment of Proposition 8 would be a remarkable setback. No civilized country has ever abolished wholesale an entire category of existing marriages. The only precedent for such invalidation of which I am aware is the Nuremberg laws of Nazi Germany, which nullified some existing marriages between Aryans and Jews. (See Richard Lawrence Miller, Nazi Justiz: Law of the Holocaust 149 (1995); Ingo Muller, Hitler's Justice: The Courts of the Third Reich 96 (1991); S.W.D. Rowson, Some Private International Law Problems Arising Out of European Racial Legislation, 1933-1945, 10 Modern L. Rev. 345, 346 (1947).)

Conservatives, as I noted earlier, are giving up on the presidential election and directing their money elsewhere. The left should show similar good sense. If you want to do something that makes a difference in this election, don?t send any more money to Barack Obama, who doesn?t need it. Donate to the campaign to defeat Proposition 8.

Full post as published by Balkinization on October 16, 2008 (boomark / email).