On November 4th, voters in California approved Proposition 8, an amendment to the state Constitution that bans same-sex marriage. Since then, more has been written about the Proposition than in the months before it passed. Before the election, political writers more or less assumed that their readers had made up their minds about same-sex marriage, so there was little to write except perhaps to encourage their readership to donate campaign funds to either the “Yes on 8” campaign or the “No on 8” campaign. People were also distracted by the upcoming presidential elections, which was more complex and was seen as more important.
Now that Proposition 8 has passed, however, it’s become interesting. Writers still appear relatively uninterested in arguing over whether the new amendment is a good addition to California’s constitution, as readers still aren’t likely to be interested in changing their opinions about the issue. The question of why the proposition passed, however, is much more interesting, if only because everybody seems to have a different opinion. People have blamed the mismanagement of the “No” campaign, the Church of Jesus Christ of Latter-Day Saints, which funded much of the “Yes” campaign and may even have planned the campaign for several years. Some blamed homophobia in the African-American community, while others blamed the racial bias of the white gay community and the Proposition 8 campaign. Some have also argued that support for same-sex marriage is itself racially biased, since marriage is not a priority for gay, lesbian and bisexual people of color. Rather than focus on marriage, the argument goes, the queer community should focus on more pressing issues such as health care, HIV prevention, and economic justice.
This is not the first time that people have argued that same sex marriage is primarily a white issue. Interestingly, though, while earlier articles such as this one from 2004 had dealt with efforts to gain recognition for same sex marriage or efforts to block legislation that preemptively outlawed same sex marriage, Proposition 8 took away marriage rights that people already enjoyed. Should this fact alone change how we judge the priorities of people who campaigned against Proposition 8?
At first glance, campaigning against a constitutional amendment banning same sex marriage may seem relatively equivalent to campaigning for a referendum approving same sex marriage. Because California’s constitution may be amended by a simple majority of voters, it would only take a couple more votes to pass a referendum approving gay marriage than it would have taken to block Proposition 8.
However, taking away a previously held right is widely perceived as different from granting a new one. It is difficult for many to swallow the idea of taking away the rights of minorities through a simple majority vote, as Kermit Roosevelt of UPenn Law has pointed out. But if same-sex marriage advocates in California had put same-sex marriage on a statewide referendum three years ago, and it had lost by the same margin by which Proposition 8 has passed, few would be arguing that it should take a supermajority to defeat the referendum because the referendum concerned minorities’ rights.
The loss of rights is also perceived differently by the individuals whose rights are at stake. As Judith Warner writes in her blog for the New York Times:
It’s easy, if you’re straight, to file away the gay marriage issue in a little folder in your mind, to render it, essentially, inessential. It can fall into the category of “bones you throw the religious right because things could be so much worse.” Or “things that would be great in a perfect world.” Or “what’s the big deal?” because you don’t actually get what a big deal it is to be able to get married when you’ve never had to consider the alternative.
Many of the gay men and lesbians I spoke or e-mailed with this week didn’t fully realize what a big deal it was to be married either. Until they were.
“I don’t think I had realized until then what it felt like to be equal,” Swanson told me. “Paul and I went on a honeymoon in Santa Fe. People would ask and we’d say we’re on our honeymoon; we just got married. We could say it not because it was a political statement but because it was a fact.
“I don’t feel equal anymore. It was a great feeling, while it lasted.”
Because humans are fundamentally loss-averse: we tend not to feel as strongly about gaining new rights or privileges as we do about losing ones that we had, even for a short period of time. Even some gays and lesbians in California who had no plans to marry may not have felt as strongly about Proposition 8 as those who had already gotten married or engaged. Loss aversion explains why opponents of Proposition 8 donated millions of dollars more to the No on 8 campaign than it most likely cost the attorneys for the plaintiffs in the California Supreme Court decision to pursue their legal case. Conversely, it explains why proponents of Proposition 8, even if they had been planning such an effort for years, put the proposition on the ballot only after the California Supreme Court issued its decision: opponents of same-sex marriage were motivated to canvass donate money to the campaign by their fear of “losing” the traditional family and various religious freedoms.
This loss aversion may also explain some of the disconnect between those who felt strongly about Proposition 8 and those who saw the issue as a pointless diversion from more pressing issues. When evaluated side by side, issues such as poverty, lack of health care, HIV, or housing may overshadow the effort to have the state recognize same-sex couples as spouses and not merely domestic partners. As Jasmyne Cannick, the author of the article I linked above, asked, “Does someone who is homeless or suffering from HIV but has no healthcare, or newly out of prison and unemployed, really benefit from the right to marry someone of the same sex?” But even those who consider health care, economic and justice, and corrections reform higher priorities than marriage in the grand scheme of things may expend more effort to preserve a right that they have – especially one that is relevant to their lives – than to change the status quo.