Prop 8 passes; Lessig urges not going to court

Unfortunately, yesterday's election produced a bittersweet result in California. Obama was elected, but Proposition 8 looks to have been passed, and it appears that California's constitution will be amended to once again ban gay marriage.

This is very sad news. Reports are showing that advocates have lodged a challenge to the amendment in the Supreme Court.

Interestingly, Lessig is now urging that those concerned do not take the fight to the Supreme Court, even if it may be technically unconstitutional. Lessig urges instead that the better way is to continue the fight to persuade the other side:

This is a democracy. We win when we persuade people of our ideals. I believe strongly that Proposition 8 is against our ideals. I have so argued. But we have failed to convince the other members of this democracy.

We need to try again. Let us launch, now, a new petition movement. Let us spend a year talking to people who disagree with us. Let us win this battle by persuading the other side. I volunteer to do whatever would help, including traveling to every church or community in this state to make the case for equality. But please, let's not try to win this battle by summoning the Supremes. Even if it is right that this Amendment is contrary to the best interpretation of Equal Protection, let us bring the ideals of Equal Protection to life, by getting people to support them.

This is an interesting point. There are certainly times when a legal challenge is necessary and right, that we can ask the judiciary, not the majority, to act to protect the fundamental rights of citizens. Indeed, this is a significant role for the judiciary, as one of the unfortunate side-effects of popular votes is often the oppression of minorities. In this case, however, Lessig believes that persuasion is the key. Given the very narrow margin of the votes and fairly recent increase in support for Prop 8 (suggesting that persuasion is possible), he may be right. In real terms, would the resentment that some voters would feel following a successful constitutional challenge set back tolerance and understanding more than an immediate repeal of a discriminatory amendment would push forward?

Presumedly, the core issue is that while a Supreme Court challenge would provide an immediate individual right to marry, the negativity associated with overturning a popular referendum will only increase social division. In these circumstances, is it right to delay the restoration of an individual right in order to further work towards popular tolerance and acceptance?

The counter argument, of course, is that tolerance and acceptance may well follow after a successful challenge and voters realise that the sky has not, in fact, fallen. Given that this argument did not work in California after the last ban was lifted, Lessig may well be right that popular persuasion will be much more effective than legal argument.