Back to the ballot

The struggle for civil rights and liberties is a dominant story line coursing through more than two centuries of U.S. history. The stories typically start with a minority group prevented from enjoying the same rights as the majority. The minority group complains about this discrimination, and if nothing changes, it seeks relief through the legislative process. But the majority controls the legislative branch, where public opinion and political expediency often take precedence over constitutional tenets.

Rebuffed in the legislative arena, the minority group turns to the judicial branch for a remedy. The judiciary, especially at the federal level, is designed to act independently of the ever-shifting views of the populace. Reflecting the wisdom of the founding fathers, the judicial branch provides a check on the tyranny of the majority, ensuring that rights and liberties are provided equally to all. Through this struggle, the United States has -- despite great conflict and difficulty -- provided civil rights to almost every oppressed group in the land.

Every oppressed group, that is, except one.

Perhaps the last civil rights battle is securing equal rights for gays and lesbians. Although significant progress has been made in recent years, events unfolding in California show that the matter is far from settled.

Last year, California voters supported Proposition 8, a constitutional amendment preventing same-sex couples from enjoying the rights and privileges afforded to opposite-sex couples. The vote was appealed to the California Supreme Court on the premise that the ballot initiative violated the equal protection clause of the state constitution.

One might have expected California's high court to throw out the results of Prop 8. After all, the initiative came into being after the very same court declared gay marriage legal.

But this week, the court, on a 6-1 vote, ruled that same-sex couples are not entitled to equal marriage rights. The majority decided that the public vote carried more weight than equal protection under the law.

Justice Carlos Moreno was the sole voice representing the judicial role of protecting constitutional rights. He wrote: "The aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification violates the essence of the equal protection clause of the California Constitution."

Moreno said the only way to deny such a fundamental right would be to amend the equal protection clause itself, so that equal protection no longer applies to all minority groups -- an ominous prospect.

The court's ruling is not the final word, of course. Civil rights advocates could appeal the ruling in federal court, or they could gather signatures to place a new question on the 2010 ballot.

The civil rights history of the 20th century suggests that a federal appeal would be the logical next move. But activists fear that today's U.S. Supreme Court majority -- with a large number of ideological conservatives -- does not exhibit the same reverence for civil rights and liberties as its predecessors. As a result, there's a good chance that a federal appeal could fail, dealing a profound legal setback to the gay marriage cause not only in California but across the nation.

Going back to the voters next year appears to be the wiser strategy. Activists believe they can wage a better campaign, and that public sentiment is gradually softening on the issue.

It's likely that both strategies will be pursued, but winning by a vote of the people would be an ideal outcome, because, as the Wall Street Journal wrote this week, it would provide the "durability that comes from popular consent."

Sadly, civil rights rarely come easy, even in a nation that often boasts of being the world's beacon of freedom. Rights that seem so obvious today -- racial equality, a woman's right to vote -- have become law only through prolonged struggle.

So it will be with gay marriage. The movement has enjoyed some recent victories, with same-sex marriage being legalized in Iowa, Vermont, Maine and Connecticut. But the Prop 8 loss in California was a devastating blow nonetheless, not only because it's the most populous state but because it otherwise has a reputation for embracing minority rights.

Until you win this fight in California, you haven't accomplished a whole lot.

One key to reversing the California law in the next election can be found in the campaign and administration of President Obama. Obama won the 2008 election by appealing not just to liberals in his party but to the entire country. His pragmatic sensibility and inclusive message persuaded many independents and Republicans to vote for him. He has adopted this approach in office as well, seeking a middle course on the biggest issues on his agenda.

Gay marriage advocates must persuade about 600,000 California voters to switch sides. They can't accomplish this by demonizing and denigrating supporters of "traditional marriage." Gaining new support will require a more nuanced and inclusive message.

Geoff Schumacher ( is the Review-Journal's director of community publications. His column appears Friday. Follow him on Twitter at