While all too many gay activists have busied themselves throwing a temper tantrum expressing their outrage at last week’s California vote in favor of Proposition 8, a few gay writers and leaders have exercised restraint, counseling caution and developing a new strategy to promote state recognition of same-sex marriage.
I believe the broader strategy should be (to do what I have been counseling for as long as I’ve been blogging about gay marriage) to make an affirmative case for extending state recognition of marriage to monogamous same-sex couples.
On the particular issue of the recently (& popularly) amended California constitution, we should not move to explicitly overturn its provision codifying the traditional definition of marriage with one expanding that definition. Instead, we should give the elected legislature the authority to determine the qualifications for marriage.
I e-mailed my friend Dale Carpenter, a law professor at the University of Minnesota, for help with the language. He cited the language of he Hawai’i marriage amendment passed in 1998: “The legislature shall have the power to reserve marriage to opposite-sex couples.” His preference would be to craft the provision as follows, “The legislature shall have the power to decide whether to reserve marriage to opposite-sex couples.” (Emphasis added to highlight the differences.)
Given how the California legislature has twice voted to recognize same-sex marriage, this would mean that once the provision were enacted, all the legislature would need do would be to vote again on the issue. This would confer legitimacy on the legislation. Elected officials, answerable to the citizens, would take responsibility for the new law.
Not just that. It would easier for many people opposed to the notion of same-sex marriage to vote for a constitutional provision which itself did not explicitly sanction same-sex marriage.