Reflections on Being Wrong - The Subsequent Education of a Young Political Activist

Recalling the California Supreme Court Decision Upholding Proposition 8 (2008) and my own Evolution

Fifteen years ago today, in Strauss v. Horton,¹ the California Supreme Court upheld Proposition 8 (2008), which wrote a same-sex marriage ban into the California Constitution.² To say that I vehemently disagreed with the decision at the time would be an understatement.³

Only a year earlier, the California Supreme Court had held, in the historic In re Marriage Cases decision, that the state’s same-sex marriage ban was unconstitutional under the state constitution.⁴

The passage of Proposition 8 just six (6) months later cut like a knife. All of the homophobic and heterosexist campaigning of Proposition 8 supporters had worked. Voters had taken away individual rights. Society had shown itself to be bigoted against gays and lesbians.

Leading up to the decision, I had felt fairly confident that Proposition 8 would be struck down as an impermissible revision to the California Constitution. I had assumed that the Court would step in and protect the LGBT community from this heinous act of bigotry. That’s what American courts were there to do - protect the minority from unfair persecution by the majority.⁵

To see the Court do the opposite was devastating. Having just finished my first year of law school, it felt like the law no longer mattered. At least not for gays and lesbians.

I felt enraged, hurt, and even betrayed. The same Court, which had only a year earlier affirmed my right to equal citizenship, had seemingly changed its mind. Equality under the law for Americans regardless of sexual orientation no longer mattered.

Although I didn’t bother to read it, I cursed the decision, declaring it wrongly decided and an absolute travesty. I proclaimed that the abandonment of the LGBT community by the Court would make me move out of California.

I still remember that day vividly. I was travelling outside California (in Boston) when I learned the news. In addition to my sense of rage, helplessness, and palpable sense of injustice, I also felt incredibly lonely. I was away from my LGBT friends and fellow political activists. They’d be out protesting, and I wouldn’t be there.

Fortunately, protests against the decision were erupting nationwide and I could attend one on the other side of the country. While I still remember the loneliness and apprehension of going by myself to join a local protest where I didn’t know anyone else, I still remember that reaffirming feeling upon arriving at the Boston Public Garden to find hundreds of other protesters who were just as angry and hurt as I was.

That night, as I protested with fellow activists on the streets of Boston, my thoughts turned to the individual Justices who decided Strauss v. Horton. The Court’s membership had not changed in between the time of the decision striking down the same-sex marriage ban and the decision upholding Proposition 8, which took marriage equality away.

The same Chief Justice, Ron George, who wrote the decision striking down the same-sex marriage ban in 2008 wrote the decision upholding Proposition 8. I cursed him. I also cursed Associate Justices Joyce Kennard and Kathryn Werdegar, who had been in the majority of In Re Marriage Cases. I wondered what had happened to them to change their minds.

Were they insane? Had they been persuaded by the bigoted campaign of Proposition 8? Or were they just cowards? Afraid of electoral punishment from angry voters who they dared not defy. Didn’t they understand how much they had hurt the LGBT community?

Journalistic coverage at the time only confirmed my feelings. Right wing journalists celebrated the decision as a victory for “traditional values.” Other journalists panned the opinion, claiming it was wholly inconsistent. I agreed, labeling it as a decision that belonged in the historical trash heap of horrendous judicial decisions.

Now, some of you (especially my paid subscribers) may note that I regularly cite to Strauss v. Horton on this Substack page when explaining the subject of the constitutional amendment, initiative, referendum, and recall process under the California Constitution.

You might be wondering, why do I frequently cite a decision that 15 years ago today I was out in the streets protesting?

Today, I look back 15 years and will humbly admit that I was completely wrong.

Strauss v. Horton was 100% correctly decided. It was a well-reasoned opinion that preserved fundamental constitutional voting rights in California and, while undoubtedly painful at the time, ultimately advanced gay rights in the long term.

Moreover, had Strauss v. Horton been decided the other way, it would have set a very bad and even dangerous legal precedent. It would have required the Court to make new law and reverse previously well-settled legal precedents just to take down Proposition 8.

Why did my mind change?

Truthfully, it’s all the things that 23 year old angry political activist me did not know or fully comprehend at the time and have discovered in that 15 year period since.

1. The significance of our independent state constitutions.

2. The constitutional precedents regarding the initiative and referendum process in California.

3. How all but one court had upheld same-sex marriage bans prior to the California Supreme Court’s 2008 decision.⁶

4. How when the California Supreme Court held that sexual orientation was a suspect classification under the Equal Protection Clause in 2008, it was not the first time a court had considered the issue but that every other state and federal court to consider the issue had rejected the argument every single time.⁷

For non-lawyers, the significance of that last realization is that without that suspect classification, courts deferred to the government when the government sought to discriminate against gays and lesbians. It meant that the government could freely discriminate with courts putting their stamp of approval on discrimination that hurt ordinary gay and lesbian Americans.

Just a handful of examples:

• The dishonorable discharges of men and women from the military solely for being gay or lesbian.⁸

• The denial of national security clearances solely on the basis of being gay or lesbian.⁹

• The firing of FBI and CIA agents solely on the basis of being gay or lesbian.¹⁰

• Laws prohibiting gays and lesbians from adopting and fostering children.¹¹

• Family court decisions stripping away custody of children from a parent in a divorce case solely because that parent was gay or lesbian.¹²

• Decisions of schools to terminate, not hire, or not promote teachers solely on account of being gay or lesbian.¹³

• Deporting immigrants on account of being gay or lesbian.¹⁴

• Depriving gays and lesbians of their rightful inheritances through the abuse of intestacy statutes.¹⁵

• Taking away the professional licenses of gays and lesbians because of their sexual orientation.¹⁶

Some have labeled the treatment of gays and lesbians in our legal system as the “Gay Exception” to the Constitution.¹⁷ That is where courts ignore longstanding legal precedents to reach a conclusion that favors discrimination against gays and lesbians.

Now, many opponents of marriage equality argued that courts had to uphold same-sex marriage bans and affirm sexual orientation discrimination lest they invent law to do public policy.¹⁸ Gays and lesbians, they argued, are outside the Constitution’s protection.¹⁹

That was a great lie.²⁰ The truth is that the Constitution protects gays and lesbians (it protects straight people too²¹) and courts only ignored constitutional precedents to enforce second class citizenship because of their own personal public policy preferences and biases against gays and lesbians.

In In re Marriage Cases, the California Supreme Court brilliantly cut through all of the bigoted nonsense and affirmed that gays and lesbians were indeed protected by the Constitution.²² If courts actually followed their own precedents instead of adhering to their personal policy preferences, sexual orientation equality under the law was an inescapable conclusion.²³

The Court took a major step towards ending the Constitution’s “Gay Exception”.²⁴

In Strauss v. Horton, the Court upheld Proposition 8 because it too was an inescapable conclusion from constitutional precedent.²⁵ By doing so, the Court demonstrated that their initial decision in favor of marriage equality was not just a political choice of the Justices but one that was legally compelled under the law.²⁶

But what if the Court had struck down Proposition 8 as an impermissible revision? Or agreed to one of the other far-out theories offered? They would have been changing legal precedents and creating new law in order to effectuate a policy they wanted. In its own way, the Court would have reinforced the “Gay Exception” by treating the legal analysis of gay rights differently.

Had the Court had done that, the Court would have been perceived as the gay marriage court, not a court that fairly evaluated the law and made decisions based upon what the law commanded regardless of what the public zeitgeist was. The Court’s persuasiveness on sexual orientation equality to other courts would have been greatly diminished.

It’s interesting to recall how the past felt. 15 years ago today, the future of marriage equality seemed utterly bleak.

Yet only four (4) years later, the United States Supreme Court would strike down the Defense of Marriage Act in a decision that subjected sexual orientation discrimination to heightened scrutiny following what the California Supreme Court had revolutionarily done in 2008. Just six (6) years later, same-sex marriage would be legal in every state in the country.

In the meantime, numerous courts began changing direction on gay and lesbian rights. Federal circuit courts began subjecting sexual orientation discrimination to heightened scrutiny.²⁷

The “Gay Exception” to the Constitution is not dead.²⁸ But it’s certainly dying.²⁹

It’s not clear this would have occurred as quickly as it did if not for Strauss v. Horton. While we experienced pain and sacrifice in California, the decision shifted the legal system to a far more egalitarian place.

Why do I offer this retrospective?

Today, it seems that some Democratic lawmakers are often influenced by the loudest voices of angry young activists in their teens and twenties. Their personal feelings are often sufficient to affect wholesale policy changes rather than actual facts. Whoever screams the loudest about what they personally feel are often the ones who will be centered and listened to by those Democratic lawmakers.

This is true on a whole host of difficult and often controversial issues, including policing, criminal justice reform, race issues, economic policies, student loan debt, LGBT rights, housing, land use, global warming, gun control, campaign finance reform, environmental issues, and trade policy.

However, the angriest and loudest voices are not always the most well-informed or strategic, no matter how justified their anger may be.

There are consequences to blindly following the activists. For example, when those who claim to support LGBT rights pursue policies that would harm the LGBT community³⁰ or those who support abortion rights push for legislation that actually weakens abortion rights.³¹

This isn’t to say that voices of activists don’t matter. Or how a person might perceive something shouldn’t be a consideration in shaping public policy. Sometimes, young, angry political activists do know more and do know better than lawmakers in power. Look no further than anti-war protesters who protested the United States’s involvement in Vietnam and our invasion of Iraq.

But as I sit here today, reflecting on Strauss v. Horton, I am reminded that angry political activists in their teens and twenties don’t always know everything. They don’t always approach every situation with rationality, reasonableness, or a clear head. Those who are driven by emotion can often lose sight of the larger picture.

15 years after the fact, I can look back and acknowledge how wrong I was regarding Strauss v. Horton.

Looking back on it, my anger over Proposition 8 (2008) was justified and reasonable. My anger at the California Supreme Court, however, was not.

Because while Proposition 8 was a horrible discriminatory proposition that took away individual rights, harmed the LGBT community in ways far beyond the right to marriage equality, and was unconstitutional under the 14th Amendment (which Strauss v. Horton expressly did not reach³²), the issues regarding its constitutionality as a permissible initiative were very different.

Blinded by my own emotion, I could not see how the Court upholding it had actually helped further LGBT rights by striking against the “Gay Exception” to the Constitution.

It’s an important reminder for today.

When making policy decisions and planning political strategy, Democratic lawmakers need to remember that listening to the loudest and angriest voices of political activists in the streets shouldn’t necessarily be listened to and followed without equivocation.

Angry political activists today can be just as wrong and uninformed as I was in 2009 on Strauss v. Horton.

1. 46 Cal. 4th 364 (Cal. 2009).

2. Strauss v. Horton, 46 Cal. 4th 364, 391 (Cal. 2009)(“Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5.”).

3. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.