Et Tu, Prop 8. The battle belongs in the courts

The editor of this website, Jeff Mitchell, wrote on Thanksgiving Day about a Survey USA poll that “revealed both good and bad news for the opponents of the enacted ballot measure which bans gay marriage in California.”

“First, the good news: The survey company asked 198 voters who voted for the measure whether the recent street protests and boycotts had changed their opinion on the controversial issue. The answers showed that 8 percent responded ‘yes.’
 
“The bad news: 90 percent said ‘no,’ -- that the protests had no effect on their opinion and they still would vote for the measure.
 
“But by removing the stated margin of error, which was plus or minus 4.3 percent from that 8 percent who the protests had impacted their thinking on the issue, the remaining 3.7 percent difference means that if the Nov. 4 election were held over again today the measure would be in a near dead heat.”

More than other reporting done on the poll, Mitchell’s is a clearer take in that his analysis accounts for the margin of error. Mitchell fairly asserts that a do-over today would result in “a near dead heat.”   
 
Of course, if there is another same-sex marriage ballot initiative to vote on in California without a presidential election in which a candidate of color is running, there is widespread agreement that the “black vote,” which reportedly went 70 percent in favor of Prop 8, on a 2010 initiative would have less impact because fewer African-Americans would go to the polls.  (Charles Blow provided some insight on the black vote on same-sex marriage in Saturday’s New York Times.)
 
There’s some common sense there. In fact, I’d bet fewer voters overall would decide the matter. Usually when the election is relatively unexciting (Gavin Newsom for governor?), fewer casual voters go to the polls.
 
If that convention holds, then any new initiative will be determined largely by the base on either side. The “yes” side was better in 2008 at getting out their message, irrespective of the truth of many of their claims. In 2010, one senses from talking to all sides that the “no” side -– that is, those in favor of same-sex marriage being legal –- will not be as complacent as they seem to have been this year.
 
About the only way there might not be a same-sex marriage initiative in 2010 is if the California Supreme Court rules next year that the essence of Prop 8, that marriage is illegal unless it is between a man and a woman, is unconstitutional under the state’s (and the federal) constitutional equal protection clause. Then, it would seem, the battle stays in the courts.
 
A great reference and quick history lesson on the court battles over same-sex marriage can be found in the 2006 book The Holy Vote: The Politics of Faith in America by the journalist Ray Suarez. On page 104, toward the end of chapter five, titled, “To Have and to Hold . . . Over My Dead Body,” Suarez writes: “The fear and resentment of having gay marriage injected into society’s bloodstreams by the courts alone should not be dismissed as some dark obsession of conspiracy theories or the fundamentalist fringe.” Yes, he explains why and, among many other things, also illuminates the conservative argument for gay marriage. (I can’t do everything for you. Buy the book!)
 
Now, I know many will be upset, but the battle belongs in the courts.* The initiative process in California is fraught with danger. The vote on Prop 8 is a political example, one of many, of the ability of a majority to deny equal rights and privileges.
 
Still, as long as the initiative process is alive, I’d like to offer one up in 2010. I’d like to call it, “Et Tu.” In English it would have to be “You Too.”
 
Et tu is a phrase likely most well known from Shakespeare’s Julius Caesar when the dying Roman dictator, stabbed by Brutus, says, “Et tu, Brute?” Caesar, in real life (you remember real life, don’t you?) may not have said anything upon being given the shiv, but the phrase is widely interpreted as an expression of surprise that even Brutus, Caesar’s former BFF turned traitorous Roman senator, was a conspirator.**
 
A different take on this by many scholars is that Caesar was not so much asking a question, as in “Not you too, Brutus?” as much as he, Caesar, was issuing a warning. Without the question mark, Caesar’s alleged utterance could be taken to mean, you too will suffer this fate or, “you’re next, pal.”
 
To be clear on the lesson, as a later result of his assassination of Caesar, Brutus committed suicide. (I know! I’ve given away the ending, but the history is still worth reading.) It’s a “what-goes-around-comes-around” thing. That is how I would intend Proposition “You Too.”
 
The essence would be to show that if you go about trying to deny the rights of others, they might turn around one day and do the same to you and eliminate your right, say, to drive on the freeways, which seems to be the most cherished activity in California. That and talking on cell phones while driving on the freeways.
 
Could there someday be an initiative sponsored by GLAAD (Gay & Lesbian Alliance Against Defamation) to “eliminate the right of Mormons to drive on the California freeways while occupying the vehicle with a member of the opposite gender?” It might be called “The Same-Sex Driving Initiative.”
 
Or an initiative sponsored as a pretext by, oh, the KKK (Ku Klux Klan; an organization that doesn’t like, well, pretty much anyone, but especially hates black people) to “eliminate the right of 70 percent of any racial group that, as determined by unreliable exit polling, voted as a majority for Proposition 8 to drive on the freeways unless accompanied in the vehicle by a member of the same sex?”
 
At the end of the day (no religious meaning intended), I don’t want you and -- because I would, for example, seek to ban college football -- you don’t really want me deciding questions of fundamental liberty and fairness. I think it’s a dangerous task for the initiative process.
 
I want the courts to perform the delicate and vital function of balancing the rights of the individual with the interest and desires of the many.
 
Some call the many a “mob,” but I’ve likely already plenty annoyed those who would take offense at that characterization.
 
Vos teneo quisnam vos es.***

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*To keep up with the legal issues involved here, I recommend taking a look here where Vikram David Amar, the Associate Dean for Academic Affairs and a Professor of law at the University of California, Davis School of Law, has begun a series analyzing the arguments on Prop 8 before the California Supreme Court.)
 
**You can read a definitive text on this interpretation; John Henderson’s Fighting for Rome: Poets and Caesars, History, and Civil War. (1998: Cambridge University Press), but let me save you the $100-plus the book costs.  Or, take my word for the existence of the Henderson interpretation and rent the 1953 movie “Julius Caesar” and when Louis Callhern utters the line, pretend the question mark is gone. You can also buy the movie for about $15 on Amazon.com.
 
***You know who you are.