I've had kind of a rough day.
The fate of Proposition 8 is somewhat up in the air. All precincts have reported in, and the results currently show the Yes side (taking away the right to marry) leading, 52.5% to 47.5%. It's a difference of almost exactly 500,000 votes.
But there are probably somewhere on the order of 2 to 3 million absentee and provisional ballots that, as of now, have yet to be counted. I gather that the absentee ballots will likely be counted within a few days; the provisional ballots might take a couple more weeks (but there are many fewer of those). But we have no reason to believe that the uncounted ballots will change the results. The uncounted ballots would have to be over 60% No to produce a final No result, if my math is right.
This is a huge setback to the cause. It's not the end of the world, but it's distressing and saddening.
Also unhappy-making: Arizona and Florida also passed anti-same-sex-marriage constitutional amendments yesterday. I'm less upset about those--partly because I had less hope that they would be defeated (it turns out that despite my telling everyone it was incredibly close these past couple weeks, I've been unconsciously assuming we would win in California), partly because same-sex marriage was already illegal in those states. Still, Florida's amendment is particularly heinous, banning civil unions as well as marriage: "no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized." Feh. And it needed a 60% majority to pass; it received 62%.
(At least Arizona didn't ban civil unions. They tried that before, in 2006, and it failed.)
And Arkansas went a step further: it already has a constitutional amendment, so they took the next step and banned adoptions and foster care by anyone who's unmarried. Which, of course, also means anyone who's gay. Unless the gay person is in a heterosexual marriage, of course. I wonder if anyone's considered setting up a matchmaking service to help gay men and lesbians who want to get married (heterosexually) so they can adopt kids. Probably not a good idea, but I'm tickled by it.
We do have some things to be thankful for (though many of these items are mixed blessings):
- The first same-sex marriages in Connecticut will happen one week from today.
- The Connecticut constitutional convention that was on the ballot there got voted down. So at this point I don't think there'll be anything that can be done to stop same-sex marriage in CT for years; and anyway, polls suggest that CT has a majority in favor of same-sex marriage already.
- My impression is that it's likely that New York and New Jersey will follow suit in the relatively near future.
- Exit polls in California suggest that, as various opinion polls have indicated for a while now, support for same-sex marriage is strong among younger voters; judging by those numbers, we'll have a majority within ten years if not sooner. But that's a long time to wait.
- Much as Prop 8 hurts, it still leaves CA with among the best non-marriage quasi-equivalents in the country. (Okay, so that's damning with faint praise. I really was pretty pleased with CA's domestic-partnership laws, until I saw that it was possible to go further.)
- In 2000, the Knight Initiative (outlawing same-sex marriage in CA) passed, 61% to 39%. Eight years later, despite an expensive and misleading campaign, Prop 8 appears to be passing by only about 53% to 48%. The gap has narrowed from nearly 23% to only 5%, in only eight years. (Of course, there were lots of other factors here that make the two sets of numbers not entirely comparable, including the fact that 8 is a constitutional amendment, which I think voters may be more reluctant to pass than just a law. Still, I think it's pretty clear that we've come a long way in the past eight years.)
- Attorney General Jerry Brown has said that the estimated 16,000 to 18,000 couples who've gotten married in the past few months will retain their married status. (Volokh considers that unlikely, but we'll see.)
- Some people have taken heart today from the fact that nearly five million Californians voted not to take away people's rights. (I guess that makes me feel very slightly better, but it feels to me like kind of a low standard to aim for, when there are another five million who are willing to vote to take away rights.)
- Some people have taken heart today from the fact that the No side out-fundraised the Yes side, in the end. (I guess I'm glad to hear that, but I also find it a little depressing (since we started out with public opinion apparently on our side, this suggests that the Yes people used their money more effectively than we did); and I also think that the campaign financially tapped out a lot of people. It's not like we can raise $40M every year for this cause if we need to. And a lot of money came in during the last week or two, when there were three or four urgent frantic appeals to give even more because those dastardly Yes people had come up with some clever new attack that we needed to counter. It didn't leave me feeling good about donating.)
- Various interested parties have filed three lawsuits to revoke Prop 8. There is enormous debate over (a) whether this is likely to work, and (b) whether it's a good idea (in terms of PR, goodwill, and keeping public sympathy) to return to the courts after a ballot defeat; I have doubts about both of those things. But if it works, I think it'll be worth it.
- We've always known this would be a long road. We'll win in the end. It may take a couple more decades, but we've come a very long way in a relatively short time, and we'll get there eventually.
Anyway. All that helps, but I still keep coming back to being sad.
I'm sorry to be a wet blanket on the Obama euphoria.
I have lots and lots more to say about Prop 8 and related issues, but I'll leave it at this for this entry.