As the battle for Proposition 8 (the California marriage amendment) intensifies, one thing has become crystal clear: If Democratic Attorney General Jerry Brown can torpedo Prop. 8, he will. Prop. 8 takes the language of Prop. 22 — approved by 61% of California voters in 2000 — and puts it in the state constitution, out of reach of activist judges.
Jerry Brown’s antics began even before the California Supreme Court overturned Prop. 22 in May. As attorney general, Jerry Brown was supposed to act as the chief defender of the state’s marriage laws before the state supreme court. Instead, Brown’s office saw to it that no reasonable argument — other than “tradition” — was put before the court, saying “tradition” is the only reason for keeping marriage the union of husband and wife.
In fact, court briefs filed by Brown actually went further. They explicitly repudiated the argument that won over courts in blue states like New York, Washington and Maryland: The state’s interest in marriage is “responsible procreation,” bringing together mothers and fathers to make and raise their children together. Marriage, the attorney general unilaterally decided, had nothing to do with that in California.
In the brief weeks since Prop. 8 qualified for the ballot in June, Brown has stepped in again to befriend the anti-Prop. 8 cause — announcing his legal opinion that Prop. 8 will not be “retroactive” (meaning existing gay marriages will stand). Worse, this month he rewrote the officially approved ballot language in ways designed to weaken the amendment’s appeal.
The language of the amendment itself is simple and cannot be changed: “Only marriage between a man and a woman is valid and recognized in California.” These 14 words remain the issue before the voters this November. But what Jerry Brown did was to change the “ballot language” (the title and description of Prop 8 that voters will see on the ballot when they go to vote) from “Limit on Marriage. Constitutional Amendment.” to “Eliminates Right of Same-Sex Couples to Marry Initiative. Constitutional Amendment.”
Most experts predict this will make passage of Prop. 8 harder, but there is a potential silver lining: clarity. Only one marriage amendment has ever been defeated, and that happened in Arizona in 2006. Polls taken after the election suggest that the ballot language confused voters about whether a “yes” or a “no” vote protected marriage as one man and one woman.
In addition, the most successful strategy for anti-marriage amendment folks heretofore has not been to focus on the messages popular among elites (e.g., “Don’t write discrimination into the constitution,” or “Look at our nice gay families.”). Margins of victory for marriage amendments began to narrow only after gay marriage advocates changed the subject: from same-sex couples to opposite sex, unmarried couples — portraying marriage amendments as a threat to insurance and other benefits sometimes available to cohabiting couples. In Arizona, for example, the campaign featured an opposite-sex senior-citizen couple in a domestic partnership, and the lawn signs all said: “Why take away health care?”
For better or for worse, Jerry Brown’s ballot language, along with the Supreme Court decision, the highly publicized flood of same-sex unions, and even several planned celebrity same-sex unions slated for October, locks anti-Prop. 8 opponents into a messaging strategy that has never worked for them in any other state marriage amendment battle: Focus relentless attention on the same-sex couples and the rights they stand to lose. It’s a risky gamble with an uncertain payoff this November for gay marriage advocates.
Despite everything one-time Gov. Moonbeam can throw at Prop. 8, the battle for marriage remains extremely competitive. So far, pro-marriage forces are winning.
In San Diego, more than 400 people turned out for a Republican Party rally for Prop. 8. In contrast, when the Human Rights Campaign showed up in San Diego to stage a widely publicized meeting to oppose Prop 8, only about 20 people showed. A widely touted Field Poll showed a majority of Californians approving of same-sex marriage, but a Los Angeles Times poll, taken the day before, showed Prop. 8 up 54% to 35%. A SurveyUSA News poll released June 9 showed Californians support the marriage amendment 44% to 38%, with a whopping 18% undecided.
Wide swings in polling usually suggest public opinion is in flux, which makes campaign messaging and fundraising key. Anti-Prop. 8 “Equality California” says it recently raised $2 million to defeat Prop. 8 at its annual banquet, including a $1 million gift from the founder of Word Perfect and $250,000 from Pacific Gas and Electric Company (a publicly regulated utility). Utilities are hard to boycott, but PG&E has also donated extensive money to defeat Prop 7, an alternative energy bill.
This week, Brian Brown, the executive director of National Organization for Marriage (NOM) California (which has donated more than $1 million to the Prop. 8 effort so far), asked Prop. 8 supporters to fight back: “I’m going to e-mail Peter A. Darbee, the Chairman of the Board of PG&E, and tell him: I’m voting Yes on Prop 8 and Yes on Prop 7. And I’m going to ask all my friends and neighbors to do the same.… Let this public utility understand that they are going to pay a price if they try to overrule the majority of Californian voters, on a matter (marriage) that is just not an electric company’s business.”
Rodger Hedgecock, the popular San Diego talk-radio host who helped put Prop 8 on the ballot, is also headlining a fundraiser co-sponsored by Protect Marriage and NOM California. Social conservative groups such as Focus on the Family and the American Family Association have donated more than $750,000, and the recent big news was the decision by the First President of the Church of Jesus Christ of Latter-Day Saints (the Mormons) to ask California LDS members to donate their “time and means” for this effort. More than $2 million has poured into the pro-Prop. 8 effort in the first week of August alone.
Focus grouping and polling suggest the two most powerful messages focus on activist judges and the well-being of children. Most Californians believe the ideal for children is a mother and father, and they do not want public schools taking away from parents the right to determine when and how and whether their grade-school children learn about same-sex marriage.
Sign up to the Human Events newsletter