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.

13 Responses to “Saddened”

  1. Vardibidian

    Just to clarify from the Elm State… the Democrats in the state legislature (huge majorities, even bigger after Tuesday) have said that they will not even consider doing anything to outlaw homosexual marriages, and the Republican Governor has said that she would not introduce anything, and would in fact use her veto if necessary to stop hypothetical legislation restricting homosexual marriage. And we do not have non-legislative initiated amendments or laws. So the only avenue available to anti-marriage forces was the state constitutional convention, and that failed, and it appears to have failed in part because it was being pushed by anti-marriage activists.

    So come to Connecticut! We’ve got everything Massachusetts has, except Boston drivers!


  2. jaipur

    Hey there, I felt much the same way yesterday. My heart was broken over Prop 8, but I would get a goofy grin thinking about Obama’s win. Downright bipolar about it.

    That is a good statistic, though, to show that the first time it was voted down by 60 to 30, while this time it was voted down by only 52 to 48, and in another 10 years it’ll probably pass–if we keep up the fight. My tendency is to say “Dang it, they’ve voted TWICE on this and keep voting it down–they’re a bunch of a bigots and we can’t change that.” But those numbers give that the lie: It’s been changed and probably will continue to change.

    It’s weird about the black voters. The exit polls showed whites were narrowly No on 8, Asians and Latinos were mixed, and blacks were strongly Yes. And they turned out in record numbers for Obama, and tipped the balance. There’s incredible irony there!! It’s weird because as you pointed out, NAACP was on teh side of No on 8. I guess the NAACP is not the voice of black California…

  3. KJ

    Like the above commenter, I spent yesterday vacillating between the Obama euphoria and sadness and anger over the passing of this proposition. The happiness and the sadness don’t cancel each other out; they both exist in me at once. It’s a very weird place to be. I do still believe, with all my heart, that we will win eventually. But I so, so wanted “eventually” to mean “today.”

  4. Jackie M.

    Prop 102 in Arizona has no teeth, at least. As you say, it is somewhat redundant with existing laws in the state… more importantly, it does not effect domestic partnerships. Two years ago AZ voters soundly defeated the proposition which would have actually impacted DPs.

    Now, that mess in Arkansas….

  5. jere7my

    Obama has promised to repeal DOMA. Assuming he does so (as far as I can tell), marriages made in MA and CT would have to be recognized by other states. So we over here would probably get a massive influx of hom’sekshuls lookin’ ta git hitched, who could then return home and still be married.

    Whether a CA couple whose marriage was quasi-dissolved by Prop 8 and gets quasi-remarried in MA is guilty of quasi-bigamy, I do not know.

  6. jere7my

    (Official campaign link: The DOMA bit is in the middle of the third point.)

  7. almeda

    I found it interesting that in a county-by-county breakdown, the entire seacoast went No on 8, while the inland flat farming country (overwhelmingly white and, by my standards, fairly privileged, but socially narrow) went Yes.

    I have inlaws in Modesto. I have no doubt whatsoever that they voted Yes on 8 … and I do agree that they’re not politically very different than most of their neighbors.

    However, it does mean we should quit blaming ‘the black church’ and ‘Hispanic values voters’ for shooting down marriage-equality measures, at least in this case, because pretty much all of LA went No, on balance, and there’s no way you’d get that result if majorities of black and hispanic voters went Yes.

  8. Jed

    Thanks for all the comments; much appreciated.

    (Side note: I deleted the first comment that appeared here, half an hour after I posted the entry; it was a gay-innuendo joke, based on a phrase I had used (which I subsequently changed), from (apparently) a random stranger. I couldn’t tell whether it was meant to be friendly or hostile, and I was in a kind of fragile state, so I just removed the comment. Mark M, if you intended that in a friendly way, then I apologize. Feel free to post a comment introducing yourself; if I know who you are, I’m less likely to delete your comments.)

    V: Excellent! Thanks for the clarification–I had been trying to find out that info, but it somehow didn’t occur to me to just ask y’all Connecticutians.

    Jaipur: Yeah, it’s gonna change. And to me, the fact that young voters strongly support same-sex marriage is even more important than the change in winning percentage since 2000.

    Re the NAACP: it was a complicated situation. There were claims that the head of the CA NAACP only supported No On 8 because she’d been paid by the campaign, and so on. Anyway, my impression is that the opposition to same-sex marriage coming from Obama and various churches may have meant more to the black vote than the NAACP–but I don’t know if anyone has any real evidence about this; I’m mostly just going by what various online articles and commentators have suggested.

    KJ: I so, so wanted “eventually” to mean “today.” Yeah. Me too.

    Jackie: Yeah, it’s certainly good that AZ 102 doesn’t directly or immediately make things worse. But what it does do (and I assume this was the reason it was proposed) is make it harder to change things via the courts. So far, our biggest advances have been through state courts declaring various laws unconstitutional; the answer has generally been to try to change a state constitution, either in response or preemptively. So although there’s no short-term change, in the long run AZ 102 hurts. (None of this contradicts what you said; I’m guessing you already knew all this. Just clarifying in case others aren’t aware of the distinction.)

    Jere7my: I’ll be very excited if Obama can repeal DOMA, but I’m not holding my breath. Bill Clinton also made big promises to the LGBT community; what we ended up with was Don’t ask, don’t tell. (And I gather that it’s generally accepted that Clinton squandered a lot of political capital on that issue in the early days of his presidency; this is usually cited as a mistake that Obama would do well not to repeat.) Same-sex marriage is a hugely controversial issue right now, and much as I would love to see wholehearted LGBT support from Obama, I don’t really expect him to sacrifice his other goals and issues to this one.

    But regardless of any of that, repealing DOMA probably wouldn’t force other states to recognize MA and CT marriages, because of the public policy exception. The US Supreme Court said, in Pacific Employers Insurance v. Industrial Accident (1939), “the full faith and credit clause does not require one state to substitute for its own statute […] the conflicting statute of another state.” This exception has been applied to marriage laws on several occasions in the past, notably to laws regarding marriage between people of two different races, and marriages between relatives. So there’s lots of precedent for US states to decide not to recognize marriages performed in other states.

    And remember that DOMA is a law, not a constitutional amendment, so if it were found by the courts to be in conflict with “full faith and credit,” DOMA would be overruled. So although I would love to see DOMA repealed, my understanding is that DOMA is not really the the main thing in the way of interstate marriage recognition at this point. And if it were, then its chances of repeal would be even slimmer than they are now; I very much doubt that Congress would go along with anything that would force the states with one-man-one-woman laws to recognize marriages from elsewhere.

    Almeda: The returns map shows more or less what you said, but not quite exactly. In particular, only about half to two-thirds of the seacoast went No; the only county south of Monterey that went No was Santa Barbara. Los Angeles, remarkably, actually went Yes, though by only 20,000 votes (0.8%). And I haven’t seen exit polls for specific counties, but the statewide exit polls that I linked to do indeed show 70% of African-Americans and 53% of Latinos voting Yes. It wouldn’t surprise me if LA-area African-Americans and Latinos are somewhat more liberal than those in more conservative parts of the state, but I haven’t seen anything to suggest that those exit polls are wrong about the percentage breakdowns by race statewide.

  9. Mickle

    “….while the inland flat farming country (overwhelmingly white and, by my standards, fairly privileged, but socially narrow) went Yes.”

    Um, no. Riverside and San Bernardino Counties, for example, are hardly “overwhelmingly white.” And I scoff at anyone who seriously tries to claim that San Bernardino City is even “fairly privileged” compared to just about anywhere else in CA. And these are places that voted nearly 2/3 for yes on 8.

    I’d also like to add, though, that despite the race break down from the polls, I don’t think the issue is one of race. Or even really wealth. The sticking point is “inland.” The CA coast tends to vote more “typical” CA, while the inland counties – no matter their race or class make-up, tend to be more conservative, like the non-coastal western states Idaho and Arizona, for example. I think it has to do with the inland counties being less cosmopolitan. It’s not really about the number of people, what race they are, or how much they make, but the number of people that you come in contact with on a daily basis that are or are not like you.

  10. Jed

    Thanks for the info, Mickle.

    I disagree with you about “inland,” though. As I noted in my previous comment, only about half to two-thirds of the seacoast went No; the only county south of Monterey that went No was Santa Barbara. Essentially, what went No was the Greater Bay Area (minus Solano County) plus a few other counties. Los Angeles County went Yes, though by only 20,000 votes (0.8%). (I don’t have a sense of how cosmopolitan or diverse LA County is, but I’m guessing the city of LA rates pretty high on that scale.) Orange County and San Diego are both coastal; it was no surprise that either of them went Yes, as they’re both more conservative than the Bay Area and LA. (Though San Diego apparently isn’t as conservative overall as I used to think.)

    And the small inland counties of Mono and Alpine went No.

    Also, Santa Clara and Santa Cruz counties, which both went No, are very liberal but not all that diverse; growing up in suburban Palo Alto, it was fairly rare that I came into contact with people who were obviously different from me in various ways. And I’m not sure of this, but I don’t think of Sonoma, Mendocino, Napa, or Humboldt Counties (which all went No) as being particularly cosmopolitan or diverse.

    I’m inclined to assume that the split among counties is essentially along liberal/conservative lines, but I don’t know enough about most CA counties to be able to support that idea.

  11. Jed

    In a comment yesterday, I wrote:

    I haven’t seen anything to suggest that those exit polls are wrong about the percentage breakdowns by race statewide.

    But now I have–I think it was a blog entry I saw last night that noted that the number of African-Americans in the exit polls was small, which suggested that statistics about that group may not be valid. So I don’t know whether we have enough data to know what the percentage breakdown for African-Americans was.

  12. Jed

    Quick sleepy update in passing: there are currently 1.8 million votes left to count; somewhere around a million of the previously uncounted ballots (more than a third of the original total, I think) have now been counted. The current standings show Yes leading, 52.3% to 47.7%. So the percentage gap has narrowed from 5% to 4.6%.

    Unfortunately, the numerical gap is still over 500,000 votes. (I think it may’ve widened a little, but I’m not sure of that.) So in the remaining uncounted ballots, No would have to get about 64% of the vote to win, which seems even more unlikely than the situation seemed a week ago. Especially since 400K of those remaining 1.8M uncounted votes come from conservative Orange County, where the vote so far has been 58% Yes.

    So I think the No campaign made the right call when they announced last Thursday that it had become clear that we weren’t going to win the vote.

    Still, sad to see it continuing to be confirmed.

  13. Jed

    P.S.: There’s been a lot of good and fascinating blogging in the past week about why we shouldn’t be blaming the black community for this defeat. I’ve been collecting links but am nowhere near awake enough to post them. But figured I should at least briefly clarify my earlier comments on this topic, which may have been unfortunately phrased: I did not in any way mean to suggest that black voters are “the reason” that Prop 8 passed; on the contrary, I’m strongly opposed to that notion. Even if the exit poll numbers had been accurate (and I’ve now seen pretty convincing arguments that they weren’t), that still wouldn’t mean that it was the fault of black voters per se; many many factors went into the result. And of course quite a lot of black voters (presumably including most or all black GLBT voters) voted against Prop 8.

    Anyway, I’m only skimming the surface of a huge and complicated topic that I don’t have nearly the time or energy or awakeness to address tonight, but thought I should at least clarify to this small degree.


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