It's an institute you can't disparage, ask the local gentry

Barack Obama's election victory has been heralded as a significant triumph in the long - and continuing - fight for civil rights in the United States. Sadly, in the very same election, California's Proposition 8 succeeded. It rescinded the right for gay couples to legally marry in that state. The state of California, that is, not the state of being gay. The latter is a condition for which I knew no adjective for most of my formative years: there were merely poofters and normal people. I hope this shows you how far I've come in battling my own predjudices. (Although I am still deeply suspicious of South Africans, and delighted to use the tag 'poofters' in two blog posts already, so there's still some way to go).

Like most fair-minded, compassionate and Damn Well Right people I find the Proposition 8 success deplorable. However, without forgetting the very real pain caused, I also think it's a fascinating example of democracy in action. There's been many protests about the decision. Such protestors have a right to express their views, but it could also be argued they have no cause for complaint: everyone voted, and they lost. Simply put, more people don't want gay marriage than do want it. It's not like a despot decreed that loved up batty boys can't tie the knot. It's not even like a group of elected representatives passed the When A Man Loves A Woman Act to enshrine our traditional values. Every single voter was asked and the majority said "ban it, please".

Majority decisions are fundamental to democracy. If you're in the minority, you have to suffer the consequences, or have a revolution and start your own damn country. (I'm now visualising a South Park episode in which Gaymerica secedes from the Union under the leadership of Big Gay Che). If there were a law were passed by referendum that said everyone had to wear hats outside, the minority who opposed it would have to suck it up and just live with the fact it would be totally Mad Men and AWESOME. Majority rulez ok. But take this law in particular. It affects everybody, but it doesn't mandate any action - it merely removes the right to take an action to those who would do so. In this case, gay people who want their Big Day. Many laws are like this - homicide law, for example. However, most of these laws exist because the action being restricted in some way harms other people. Murder, last time I checked, harms people a good deal, not least murder victims. Actions can harm people directly and indirectly: murder harms murder victims, polluting cars harm a city, corporate monopolies harm the economy. So: does gay marriage harm anybody? We have arrived at the crux of the issue.

Proposition 8 proponents believe same-sex marriage harms society. I won't go into detail about why they believe this, but it boils down to: making gay stuff legal legitimises it. They usually then claim, Seinfeldesquely, that's there not anything wrong with being gay, but...well, we still don't want anyone hearing about it in schools or anything. It doesn't take a disciplined application of intellectual rigor to see this doesn't make sense. I don't want to go over the arguments again. What's interesting here is: should we make laws that attempt to protect society from social change? My libertarian gut response is no. Yet I think we should reserve the right to make such laws. Most people wouldn't think a law to ban derivative, misogynistic rap music is fair, even though a large majority may despise such music, and having it around may encourage acceptance. But what about, say, a law banning simulated child pornography? No one is harmed in the making of such material, but will its availability encourage acceptance of paedophilia? Maybe, maybe not. But the point is there may be situations where such laws could be useful to combat social ills - or at least what a current majority of people thinks is a social ill. I'd like to avoid ever making laws that curtail freedoms, but I can't guarantee I'd never support one.

In any case, a society cannot make it impossible to make certain types of laws - even Constitutions, in part designed to do just that, can be changed. Even laws that are passed are only as good as the society that obeys and enforces them. I digress.

There's a kicker to all this democracy discussion: the original right to same-sex marriage wasn't granted by a Proposition. In fact, in 2000 there was a Proposition, but with an opposite intent: it wanted to change existing legislation to clearly define marriage as a union between a man and woman. Californians voted it in by a significant margin. Thus, gay marriage was explicitly banned. In May this year, the California Supreme Court ruled this alteration unconstitutional, meaning same-sex marriage was legal again by way of being, well, not illegal. Proposition 8 will add the marriage definition to the Constitution itself. Without wanting to digress even further into a judiciary vs. legislative branch argument, it seems fair to assume voters in 2000 knew what they wanted, and the majority can reasonably claim they had it taken away on a technicality. Does this make Proposition 8 less evil? Perhaps, but it definitely makes it even more democratic.

This may depress you, but I think we can take some heart from it. People are free to talk about the issue, attempt to change opinion and have their say at the ballot box. Then, if attitudes change; they can debate, lobby and vote again. This is a better situation than most people around the world enjoy - most people in history, for that matter. Winston Churchill famously said "democracy is the worst form of government except all those other forms that have been tried". (He also reputedly said "the biggest argument against democracy is a five minute discussion with the average voter", but let's not go there.) Things will change. When Barack Obama's parents married in 1960, they were lucky they lived in Hawaii. Their marriage was a felony in over half the States in the Union.