Prop 8 Post-Mortem: Knowing the Other


In a recent email newsletter to members, Human Rights Campaign President Joe Solmonese shared his thoughts about Proposition 8, the anti-gay-marriage ballot measure that narrowly passed this week in California:


Fifty-two percent of the voters of California voted to deny us our equality on Tuesday, but they did not vote our families or the power of our love out of existence; they did not vote us away. As free and equal human beings, we were born with the right to equal families. The courts did not give us this right—they simply recognized it. And although California has ceased to grant us marriage licenses, our rights are not subject to anyone’s approval. We will keep fighting for them. They are as real and as enduring as the love that moves us to form families in the first place. There are many roads to marriage equality, and no single roadblock will prevent us from ultimately getting there.

And yet there is no denying, as we pick ourselves up after losing this most recent, hard-fought battle, that we’ve been injured, many of us by neighbors who claim to respect us.

By the same token, we know that we are moving in the right direction. In 2000, California voters passed Proposition 22 by a margin of 61.4% to 38.6%. On Tuesday, fully 48% of Californians rejected Proposition 8. It wasn’t enough, but it was a massive shift. Nationally, although two other anti-marriage ballot measures won, Connecticut defeated an effort to hold a constitutional convention ending marriage, New York’s state legislature gained the seats necessary to consider a marriage law, and FMA architect Marilyn Musgrave lost her seat in Congress. We also elected a president who supports protecting the entire community from discrimination and who opposes discriminatory amendments….

But even before we do the hard work of deconstructing this campaign and readying for the future, it’s clear to me that our continuing mandate is to show our neighbors who we are.

Justice Lewis Powell was the swing vote in Bowers, the case that upheld Georgia’s sodomy law and that was reversed by Lawrence v. Texas five years ago. When Bowers was pending, Powell told one of his clerks “I don’t believe I’ve ever met a homosexual.” Ironically, that clerk was gay, and had never come out to the Justice. A decade later, Powell admitted his vote to uphold Georgia’s sodomy law was a mistake.

Everything we’ve learned points to one simple fact: people who know us are more likely to support our equality.

In recent years, I’ve been delivering this positive message: tell your story. Share who you are. And in fact, as our families become more familiar, support for us increases. But make no mistake: I do not think we have to audition for equality. Rather, I believe that each and every one of us who has been hurt by this hateful ballot measure, and each and every one of us who is still fighting to be equal, has to confront the neighbors who hurt us. We have to say to the man with the Yes on 8 sign—you disrespected my humanity, and I am not giving you a pass. I am not giving you a pass for explaining that you tolerate me, while at the same time denying that my family has a right to exist. I do not give you permission to say you have me as a “gay friend” when you cast a vote against my family, and my rights.

Perhaps Jesus spent so much time with social outcasts, not only healing them but allowing them to minister to him with hospitality and loving touch, to model a pattern of life that benefits us even more than “the other” to whom we reach out. Segregation stifles our moral imagination. If everyone close to you is a Christian, maybe it’s easier for you to compartmentalize the idea of eternal hellfire for the unsaved, to write off their torment as necessary sacrifices to the consistency of your idea of God. Similarly, if openly gay families are not welcome in your church, you’ll never see the facts that contradict the lies you’ve learned, the stereotypes about how their love and faith are not as genuine as yours.

To borrow from the language of law, it’s interesting to ask why certain stories in the Bible are taken as universal precedents, while the application of others is strictly limited to their facts. For instance, Catholics and some conservative Protestants believe that Jesus’ maleness is a relevant trait that should be required of all ministers who stand in his stead. None of them, as far as I know, have argued that priests should all be under 33, trained in carpentry, Middle Eastern, or of Jewish descent, though these traits–equally unrelated to one’s personal gifts for the ministry–would have been viewed by his own culture as important determinants of his identity. Gender essentialism is a presupposition we bring to the Bible, not a doctrine compelled by its pages.

Similarly, ambiguous “dicta”, so to speak, about pagan sexual practices in verses like Romans 1:27 are applied to today’s same-sex marriages in a way that brooks no disagreement, no openness to information about the character of those relationships then and now. Meanwhile, the “holding” of the story of Peter and Cornelius in Acts 10 somehow never gets applied by those who believe change is the enemy of Biblical authority rather than a fundamental part of the Bible’s storyline. Of course Peter had to eat with a Gentile, they might say. That was about the Jewish law being superseded–by us. That could never happen to us and the groups we believe are outside our holiness code.

If you have no idea what I was just talking about, this Torts outline from Chicago-Kent College of Law may help:


Qualifications to Stare Decisis

1. Holding v. Dictum. A court is not bound by the words used in a prior decision, nor all of the reasoning used; it is only bound by the legal principle or principles that were necessary for the previous court to reach the decision it reached….i.e., the new case is only bound by the HOLDING or RATIO DECIDENDI of the former decision.

2. The previous opinion may have talked about many things not necessary to the outcome. Such a statement is classified as DICTUM (or if more than one, DICTA)(sometimes OBITER DICTUM).

Why aren’t these binding? We have an adversary system. That principle of law was not argued by the litigants in the previous case, and not fully weighed by the court in deciding the previous case. Often, they are merely opinions of the court, and will not be applied in a case where the issue clearly is presented and fully argued.

So, when reading any decision, whether in a substantive course or for legal writing research paper, it is very important that you identify the exact holding of the case, and what is merely dicta.

3. The prior decision is binding only if the facts in the subsequent case are the same, or substantially the same, as in the previous case — i.e. if they are fully analogous.

If there are significant differences, the previous case may be “distinguished”, or are “disanalogous,” and will not be binding on the subsequent case.

That is not to say that the new case cannot reach the same conclusion, but the court in the new case is not required to follow the previous case. It may now extend that case’s reasoning to include the new case. On the other hand, it may conclude that the new facts are significantly different and require a different conclusion.


Perhaps all would-be theologians should go to law school…

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