I was and am passionately against California's proposition 8, an unprecedented rearguard action on the part of religious conservatives to strip the rights of marriage granted by California's constitution. It is heartbreaking, and unfair, and a travesty. But it wasn't illegal, and it certainly wasn't undemocratic. So I will not be protesting against it, and I do not support the ongoing legal action against it. I twittered to this effect and immediately received several responses questioning this decision on a variety of fronts. I've been meaning to blog about this for a while now, so here goes.

We lost, in a reasonably fair election

Proposition 8 polls immediately before the election and six months before showed extremely similar results: a clear majority of the population, between 55% and 65%, think that marriage should be between a man and a woman. Despite a ton of campaigning on both sides, those numbers didn't change very much. It was always going to be an uphill battle.

No On Prop 8 were a little slow out of the gate but picked a pretty good strategy, turning the focus away from the unwinnable referendum on gay marriage to a question of rights, and whether citizens should be stripping them away from other citizens, "regardless of how you feel about gay marriage". It helped a lot, and the gap was narrowed to a tiny 2% margin, but proposition 8 still passed.

The concept of a fair election in the modern United States is a tricky one. Political donations qualify as free speech, and money is airtime, so there was a ton of money involved. There was a lot more on the side of Yes than on No -- but then, there were a lot more people in favour of 8, too. Nobody (well, not too many) people are saying it's unfair that Obama won the election because of his gigantic fund-raising advantage. He got a lot more money because he was popular, and he got more popular because of all the money.

Of course the Mormons complicate things. A lot of money was donated to the cause by Mormons -- somewhere between $20 million and $30 million dollars -- many of whom live outside of California. This is a little unfair, but it's not like there weren't non-Californians donating to the No campaign either, and they were also donating vast sums of money. It was, as far as US elections go, fair.

We lost the election. It sucks that we did, I hate that we did. I donated my time and effort* to this campaign, and many of my dear friends gave far more than I did, and lost far more than I did when we lost. But we did lose.

Courts are not the way to win rights

I realize that this is not a settled matter, but I do not believe that lawsuits striking down Proposition 8 are the way that queer people in this country should get their rights of marriage. I think courts should be about striking down dumb laws -- and that's what they did, when they legalized gay marriage in California in the first place. That's the way courts should be used. But legal wrangling over the definition of an "amendment" or a "revision" of the constitution, even if successful, will look and feel like a back-door** way of getting rights. We're overturning a clear majority vote. That is undemocratic.

Devolving into racism and religious bigotry is a shockingly dumb idea

Exit polls about 8 revealed some uncomfortable truths about voting patterns. Notably, black voters were hugely in favour of proposition 8 -- and because of Obama's popularity with black voters, their turnout was higher than usual (this was to a lesser extent also true of the latino vote). This sparked some repulsive reactions in the gay community that bordered on advocating voter suppression.

The wonderfully clever Nate Silver over at FiveThirtyEight has eloquently debunked this narrative. Obama did not inspire black voters so much as he inspired new voters. These voters, on balance, helped narrow the gap between Yes and No on 8. If they had been a little more solidly against 8 it would have failed, true, but on balance they helped -- latinos in Obama's strong 18-29 demographic voted 59-41 against 8 (there's no equivalent figure for black voters 18-29).

There was also a tremendous religious backlash, particularly against the Mormons. There's a little more truth to this: the involvement of the Mormon church clearly overstepped the bounds of separation of church and state on this matter. However, churches across the country routinely do the same on a variety of matters. I'm okay with stripping churches of their tax-exempt status (regulate them just like regular charities, or if they are not charities, then as profit-making businesses). But there are a huge number of faith-based organizations against 8 as well.

Old people are the problem

The problem isn't black people or religious people, it's old people. But, in the soon to be immortal words of Dan Savage, "they're dying, which is some comfort". Old black people, old religious people, old white people, old people of every stripe voted in favour of Prop 8. And yet, they still only won by 2%.

We get to try again

The beautiful thing about democracy is that the will of the people can change the law, and as the people change, so will the laws. We lost this round. It was an overreach. We have suffered a hurtful loss, and it stings. We need to continue to fight for our rights, but the right time to do that, the honorable time, is in 2010, when we can put yet another proposition up for a vote giving us those rights back. Those 300,000 people who made up the margin this year will have died or been persuaded by then, and we will win. If not in 2010, then in 2012, or 14, or 16.

Everyone can see the way the tide is going on this. In Massachusetts and Connecticut and New Jersey and more, we are getting our rights. In other states like Florida and Arkansas, those rights are being taken away. Gay marriage is abortion 2.0: the new moral issue that the religious right will use to divide us. But they've chosen a losing battle this time, because while abortions are always unpleasant, no matter how sensible, marriages are beautiful, happy things. It's hard to remain a popular religion in America when you advocate making strangers unhappy: Americans are pretty nice, generous people on the whole.

So I disagree with proposition 8. It remains a cold little dagger of intolerance thrust into my back, which twists a little every day, reminding me that the beautiful state of California and its friendly, prosperous inhabitants think that I am not worthy of the same rights as everyone else. It leaves me hurt and frustrated and angry. But I will not be joining the protests, and certainly not supporting the lawsuits. We lost this time. But we will win eventually. And I take comfort in that.

* I am legally unable to donate money to political campaigns in the United States.

** Pun intended.