Freedom, Equality, and Same Sex Marriage

In addition to sorting through candidates for national, state and local offices, from President to county supervisor, Californians had the opportunity to vote on 20 propositions on March 7. One of these, Prop 22, became a national issue. President Clinton and most of the presidential candidates, for example, took a stand on it. (Clinton, Gore and Bradley were against it, McCain and Keyes for it.) The proposition stated simply that "only marriage between a man and a woman is valid or recognized in California."

The proposition was on the ballot and is a national issue because two states, Hawaii and Vermont, through court action, have seemed recently on the verge of making marriages between people of the same sex legal. If a same sex couple married in one of these states moved to California, then in the way these things normally work, that marriage would be recognized in California. Prop 22 prevents this.

The proposition passed easily. According to exit polls, majorities of both men and women supported it, as well as majorities of all races and ethnic and income groups. Republicans supported it by about six to one and Democrats two to one. The proposition looked likely to pass by with about 60 percent of the vote.

Supporters of the idea that same sex marriage is not marriage in California and around the country should not rejoice, however. In a sense, they did not deserve to win because they did not make a good argument for their cause. Supporters of Prop 22 based their case on freedom, one of the two most powerful ideas in our politics (equality is the other), but this was not the real issue. Californians, they declared, should not have to accept what the people or courts of another state decide. Californians should be free to decide for themselves. But Californians accept all sorts of decisions made by the people and governments of other states, from who gets a driver’s license to who owns what property. Californians even accept as legal the marriages performed in other states. Indeed, our federal system of government depends on states accepting the decisions of people in other states. The only reason not to do this in the case of same sex marriages is if they are wrong. Those off
icially involved in supporting Prop 22 never argued that it was.

Other supporters of the measure did. Catholic, Mormon and conservative Protestant churches, for example, emphasized that Prop 22 was a moral issue. But while religious organizations may be influential with some, they are not decisive with large numbers of voters. In any event, religious opinion was not a prominent part of the public debate on Prop 22.

Prop 22 appears to have won, then, not because a good argument was made for it but because of a sentiment or prejudice in favor of marriage as a relationship only between a woman and a man. But this is why supporters of Prop 22 should not rejoice. The prejudice in favor of this idea is not secure. After all, around 40 percent of Californians voted against the measure. Who could have imagined such a result 20 years ago? What will voter opinion be 20 years from now? Consider that polls throughout the campaign showed that many of those who supported Prop 22 also supported equal rights for homosexuals. Al Gore, for example, has declared that stable same sex partnerships should have the same rights as marriages and that he will work for this when he is President. But if same sex partnerships have the same rights as a marriage, they will be marriages in all but name.

Opponents of 22 recognized the power of the idea of equality, of treating people equally and fairly. Consider, they asked, the case of a homosexual couple who have been together for a long time and who are doing a good job of raising their adopted children. Should not such couples enjoy the same rights as married couples? Isn’t that fair? Supporters of Prop 22 had no effective response to such an argument.

Over time, given the power of the idea of equality in American life, the argument that fairness requires that same sex partnerships have the same rights as marriage is likely to win over the bogus argument about freedom that Prop 22 supporters used. Unless these supporters and others who share their views around the country devise a good argument that same sex marriage is wrong, their victory on March 7 will be hollow.

David Tucker is an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University and an Associate Professor at the United States Naval Postgraduate School.