Slatted_Light at Dennis Cooper's blog had this comment today so detailed and so right-on that I'm saving it here:
I think you should have at least some cautious hope on the Prop 8 legal battle, dude. Like all LGBT rights issues, the deck is stacked against it but there is a clear shot here, even if it is a long shot. The real question is – as Heliotrope pointed out – whether it would be wiser to try this out before a future Obama Supreme Court later on rather than have the California Court overrule the amendment which could risk a legislative constitutional convention. A constitutional convention is actually also a very big long shot as well but of course the risks are high too. More likely the court will rule that Prop 8 was an amendment and not a revision because – as always with LGBT issues – the argument can be easily be mounted that the amendment has not involved “a broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution” – the current standard set for what constitutes a revision under Californian law. The amendment’s supposed ‘specificity’ saves it in that regard because, unlike the really excellent example Bernard gave yesterday of revoking Miranda rights, Prop 8 could be argued not to “necessarily or inevitably alter the basic governmental framework” of the Constitution – which was the reason an attempt to strike down a gay marriage ban as a constitutional revision in Alaska failed because the Court, citing California precedents, held that a proscription of LGBT marriage rights was discrete enough an issue not to upset the constitution’s fundaments. I think I’m still for a legal challenge though simply because I loathe the idea that elections can be used to strike down equal rights for minorities. The difference once again is the fact that the California Court already found the right to marriage to be extant in the constitution under the equal protection powers recognised when antimiscegenation laws were struck down. The argument has been made by Eugene Volokh that – in looking at the legal history – it is possible that “the amendment process may be used to cut back on the scope of a state constitutional right as well as to add to the scope of such a right.” The thing to question here, though, is the concept of ‘scope’. It isn’t that all marriage rights are being reduced in their reach (say, for instance, like in reducing marriage to a union of only one person to one other) but rather that the availability of this right is being circumscribed utterly from a specific group deemed ineligible for it. It isn’t a matter of scope, or scale, but of type, or kind. This is exactly why the California Court felt the need to refer to the antimiscegenation laws in the first place: because the marriage rights of queers is about granting access not limiting impact. I feel as though it’s important for the queer community to take a stand on that ground too because it’s not ‘only’ about their right to union now but also about a defence of citizenship’s relation to constitutionalism and a stand against the distortion of democracy into a mechanism for arbitrary rule and acclamatory discrimination. Even if a constitutional convention were to be called in the wake of the California Court overruling the amendment, the fact that it had overruled it would be significant in itself, demarcating the court’s authority and setting a very important precedent for future rights battles.
One other thing I’ve found particularly disheartening in the wake of Prop 8 being approved is the vitriol that it has triggered from gay liberals – mostly gay male liberals, I have to point out – against the African-American vote. Joe Mills posted a good example the other day from Dan Savage. If you didn’t get a chance to read the link he put up, I’m sure by now you’ve at least heard the exit poll figure which announced that 70% of African-Americans voted Yes on 8. That’s been bandied about by outraged gays as some sign that blacks are the new queer-crushers. Here’s what Savage had to say: “I’m done pretending that the handful of racist gay white men out there—and they’re out there, and I think they’re scum — are a bigger problem for African Americans, gay and straight, than the huge numbers of homophobic African Americans are for gay Americans, whatever their color.” He pretty much sums up the barely concealed – and totally clueless – intolerant anger that’s now doing the rounds as a quick fix solution for why Prop 8 failed. Of course, it’s garbage. Naturally homophobia exists among African-Americans, just as it does as much among women as men; it’s a heterosexualist alliance. But in the first place, as Joe M pointed out, this focus on African-Americans is a total distraction from the distributive power of homophobia in American society, where the funders and organizers and purveyors of this anti-LGBT movement are white religious conservatives and – as Bernard noted too – the PR machinery that they have developed. It wasn’t African-American churches that put Prop 8 on the ballot; it was the white religious movement, this time refracted through the Mormons; and that’s what counts. African-Americans aren’t the obstacle to progress; they’re the road. And as for the exit poll itself, I’m not sure that it proves that much at all. For starters, the sample is so small, 2240 respondents, of which 10% – 224 – were African-American that it’s hard to say what it signifies exactly about the wider vote. True, the African-American vote in Florida on the gay marriage ban there did attract a similar number in the exit poll – 71%. But as a commenter pointed out on this blog, in California, "According to the exit poll, the final overall split was 51.88 (for) to 49.12 (against). So, if the blacks had voted the same as the latinos (53% in favor), it still would have just passed 50.18 (for) to 49.82 (against). BUT, if blacks had voted in the same way as whites (just barely against Prop 8), the measure would have just barely failed 49.78 (for) to 50.22 (against)." What that means is that there is nothing specifically obstructionist about the bogeyman of black homophobia in the way that Dan Savage has it above. Rather, the obstructionism (as ever) is in the common consensus that has been assembled to deny the LGBT community rights across groups. Indeed, as that same commenter concludes, “Getting more blacks out to vote did not affect the outcome of Prop 8. If, however, blacks were less anti-gay marriage, the Prop could have been Voted NO and would have failed.” The point I’d add is that if any of the groups had been less gay marriage the difference would have made in what was a fairly close ballot.
This nasty reaction to African-Americans in particular, however, in the wake of Prop 8 does indicate something very clear to me though. Namely, that LGBT activism really needs to move past its own anti-religious bias. This great article points out that far more than any theft of their rights by callous blacks at the polls, the real reason Prop 8 went down was due to serious organizational failures. The No on 8 campaign was well financed but it was slow on the uptake and sluggish in attempting to create a solid base. Not only that but as this blog points out, the racial disinterest in the No campaign also played into the minority result at the polls. Commenters like Andrew Sullivan are saying that the 8 'debacle' shows that the legal route is the one to take as it only triggers this sort of electoral backlash. I completely disagree. I’m all for the courts as a grounds for securing the rights of queers. Antimiscegenation laws went down in California in 1948 without some mass conversion of social opinion beforehand and there’s no reason gays should have to cool their heels and wait for the world to change now. Plus laws themselves alter opinions. But at the same time, there does need to be a stronger activist component to the gay rights movement that tries to assemble a wider grassroots base when it faces contestation of its rights. That, in turn, requires rethinking how to grapple with the things that hold a homophobic consensus together and one of the most important of those things is religion. At the moment, the conservatives simply own religion when it comes to discourse on queers. Gays and lesbians really make little attempt to try and open up a dialogue with churches and carve out a theological case in the wider community for why it is that religion is not antithetical to homosexuality. Part of the popular leeriness toward queer marriage is the concept that the admission of queers will secularise it. This is one of the dogwhistle meanings behind the words when conservative preachers beat on about the threat to 'sanctity' of marriage, LGBT activists aren’t addressing this. They aren’t trying to define what determines the inviolability of the marriage bond in terms of the Bible, what makes it holy, in a way that decentralises the heterosexualism that the right insist upon. Nor are they combating the assumption that the Bible is straightforwardly ‘against’ homosexuals. A good starting point on this that can be seen in Daniel Karslake’s very brilliant documentary, For the Bible Tells Me So, which should be widely distributed - for free - to voters in a form of DVD leafletting.
Beyond this, what I find so remarkable is to the degree to which gay rights have gained such traction by drawing on 'like race' arguments to ascertain their equality in the courts but the ongoing obliviousness amongst gay activist to seize on one of the key elements that gained abolitionism authority in the 19th century: namely, biblical battles over passages in the Bible. Conservatives may seem to have the final word on this issue in terms of the Biblical text because there are undeniably passages in the Bible which draw down censure and condemnation and exclusion on homosexuality. But slave-holders had the same advantage and they were argued down. In fact, the act of arguing their moral authority down in this way decisively fed into secessionism. There is already plenty of excellent work being done on the intricacy of the relationship between homosexuality, sexuality and religion but I feel that the over-inflated sense that all churches and believers participate equally in intolerance toward gays acts as a real roadblock to any sustained effort to try and synthesise and promote this information and, through it, form a much-needed religious voting bloc to counter the popular conservative sin and sanctity narratives. Gay activists really need to start guest-speaking in churches wherever they can; to make their case to congregations; and doorknock and have discussions for gay marriage based on appeals to religious rights and biblical exegesis as much as civil equity arguments. The two are coupled together when it comes to queers - they can't be drawn apart. In particular, too, one group of gays and lesbians – a small splinter to be sure, but a vital one – is really left to the side of LGBT activism when they should be at the forefront. These are religious queers. Religious queers are utterly crucial, especially because they are denied rights twice when it comes to gay marriage exclusion: not only in terms of their civil rights, but in terms of their freedom of worship. In that regard, they are able to make the totally legitimate counterclaim that their freedom of religion is being impinged upon by the manipulations of the anti-gay church, who can then be presented as un-American for attempting to inhibit the liberty to worship free of interference that the separation of church and state was designed to facilitate. This avenue of attack has not nearly been explored enough because the idea of a queer religiosity has been taken as accomodationist and normalizing. To an extent, this is true because the Savages and Sullivans of the queer movement have been left to be the advocates for this approach up til now. But religious queerdom really isn’t reactionary in itself, not even moderate; it’s intensely radical because it proposes to make mainstream a reading of sexual relations that does not allow homosexuality to be the easy other of religion. It works to defuse the non-communicability of the pair – which is where conservatives most basically triumphs. A queerness that can rally Christians rightly done is hardly a turn toward assimilation. In fact, it is absolutely against the status quo.