Reading the first comment to my post on why, I believe, the Prospects Don’t Look Good for Overturning Proposition 8 in the Golden State, I wondered if a reader had been stealing glances at my notes for he had done a great job anticipating an issue which I plan to start addressing with this post and hope to consider regularly for the next few weeks:
So, Dan, this looks like a great opportunity to start working with / providing consultation-advice, and build some bridges.
Work on the side, provide input in any way that makes you feel comfortable, or will you close the door on this opportunity to be part of the change?
Basically, I’ve been scribbling notes on strategies for overturning Prop 8. Right now, I don’t think it would be smart to push this issue for 2010 and it might be better to wait until 2012, but the success of the legislation in New Hampshire may make it easier to address the issue sooner rather than later.
There, while the Governor peronally opposed gay marriage, he signed legislation providing for his state to recognize it because it included language spelling out “that churches and religious groups would not be forced to officiate at gay marriages or provide other services. Legislators made the changes.”
If that gay marriage opponent could be persuaded to sign a bill recognizing same-sex marriages, then other gay marriage opponents could be persuaded to vote for similar legislation.
In short, do in California what the legislature in New Hampshire did after Governor Lynch first vetoed the bill–include a provision addressing the concerns of gay marriage opponents. And their strongest argument is that state recognition of same-sex marriage could prevent churches and other religious institutions from defining marriage according to the dictates of their faith.
So, include such a provision. And have a conservative legsl scholar draft it. Thus, when pushing this measure, advocates can point to his authorship. It would give the measure credibility on the right and make it more difficult for social conservatives to raise the religious freedom objection which they used so effectively last fall.
I believe such a provision would increase support for the proposition among Republicans. And if supporters of the new measure hold onto all those who voted “No” on 8 last fall, a shift of say 10% of Republicans could make the difference.
My friend Dale Carpenter who blogs at the Volokh Conspiracy, a libertarian-leaning law blog, widely read by conservatives, like the idea and would be wiling to work on it. He recommends these jurists, Doug Laycock (Univ. of Michigan Law School), Rick Garnett (Notre Dame Law School), Robin Wilson (Washington and Lee Law School), and Tom Berg (Univ. of St. Thomas Law School). They worked on the provisions in legislation in New Hampshire as well as Connecticut.
Let me summarize, if a conservative legal scholar drafts the provision, gay marriage advocates can cite his authorship in the campaign. Imagine how this line, “Thie proposition, written by conservative legal scholar Bob Blackstone . . . ” would sound to people favorably disposed to gay people, but wary of gay marriage (I know many such Republicans). You can appeal to them by address some of the issues which make them so wary. And knowing a respected conservative jurist wrote the measure might help quiet their concerns.