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September 10, 2011

Notes from Lavender Law in Los Angeles

OK, posting the photo at right may be silly, but Photothis example of the LA school of urban sculpture looms over the hotel where the Lavender Law Conference just wrapped up, so I've had to look at it for several days running. And it's a scene too absurd not to memorialize.

More seriously, on to a few thoughts inspired by the conference:

I spoke on a panel on popular constitutionalism, where Michael Boucai, Kim Buchanan, Praveen Fernandes, Amanda Frost, and I discussed the tension between expansion of the devices of direct democracy (including ballot referenda and judicial elections) and the risks they pose to unpopular minorities, as well as the kinds of mediating institutions (a very different structure for campaign finance, for starters) that could mitigate the downsides. California is obviously the example of direct democracy run amuck, but the question of how to preserve the value of popular constitutionalism without repeating California craziness is not necessarily easy.

Although many people see Prop 8 as irrefutable evidence of why popular constitutionalism is a seriously bad theory, I think it's more complicated than that. A vote to eliminate a fundamental right from a group classified on a suspect basis is pretty squalid. On the other hand, if Prop 8 itself were eliminated by popular vote rather than by a judicial ruling, that arguably would be a far more powerful embedding of the norms of equality and dignity into the bloodstream of the body politic. The prime strategy chosen (but by whom and for what reasons?) was to seek relief before the federal judiciary. Now the existence of that lawsuit plus the staggering cost of mounting an initiative campaign in this state virtually precludes any chance of opting for an electoral strategy.  I'm not prejudging the debate; I can imagine deciding to take either route after weighing all the pro's and cons. (NB - I would frame the constitutional claims in the way that the City of San Francisco has, which is different from the framing by lawyers for the individual plaintiffs.) But it would have been nice to try to think through those questions before the proverbial train left the station. 

This morning, as part of a panel on family law, James Esseks of the ACLU described ballot measures that are likely in the future, noting that 2012 may mark the first time that pro-lgbt advocates place a same-sex marriage question before voters. At this point in time, only one ballot measure is certain.  In Minnesota, a provision to amend the state constitution to ban same-sex marriage will be on the ballot. Such a provision may also go to voters in North Carolina.

In Maine and Oregon, though, there could be ballot questions in 2012 that would repeal bans previously adopted by voters. Advocates in Maine have already begun collecting signatures in a petition campaign, and Basic Rights Oregon is seriously considering whether to do so. To both stop an anti-gay law in either Minnesota or North Carolina, and to repeal an existing anti-gay law in either Maine or Oregon - by popular vote - would mark another turning point on this issue, politically if not legally.

In general, advocates have come to assume that legislative adoption of a marriage equality law will not end the debate in any given state. If any mechanism for a popular vote to amend the state constitution exists, they assume that gay marriage opponents will use it. This means that a legislative strategy is incomplete without first doing the same kind of opinion polling and other prep work that go into an election campaign. So, for example, the strategy to enact a marriage bill in a state like Maryland, where legislative adoption may be possible in the next few years but which also has a referendum mechanism, will include grassroots election campaign style work and not just the efforts required to lobby members of the state legislature. Enacting a marriage equality law is only the first step; whether the law endures will depend on whether it can be sustained by popular vote. 

Popular constitutionalism.

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