Proposition 8

10/26/2008 By Shawn Burns

Whether you support or oppose Proposition 8, the proposed amendment to the California Constitution to define marriage as between a man and a woman, you ought to do it deliberately.

Making a deliberate choice means not only checking “yes” or “no”, but doing so with the consequences of that choice in full view, and accepting them. Making a deliberate choice means choosing for reasons that stand up to scrutiny.

From ProtectMarriage.Com, the major sponsor of the amendment:

About Proposition 8
Proposition 8 is simple and straightforward. It contains the same 14 words that were previously approved in 2000 by over 61% of California voters: “Only marriage between a man and a woman is valid or recognized in California.”
Because four activist judges in San Francisco wrongly overturned the people’s vote, we need to pass this measure as a constitutional amendment to restore the definition of marriage as between a man and a woman.
Voting YES on Proposition 8 does 3 simple things:

  • It restores the definition of marriage to what the vast majority of California voters already approved and what Californians agree should be supported, not undermined.

  • It overturns the outrageous decision of four activist Supreme Court judges who ignored the will of the people.

  • It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage, and prevents other consequences to Californians who will be forced to not just be tolerant of gay lifestyles, but face mandatory compliance regardless of their personal beliefs.

Section 1:

The first highlighted section and its attendant bullet point (Marked in Orange) from the Prop 8 sponsor site does two things: (1) it provides the actual wording of the proposition and (2) it provides the very first argument for voting for Prop 8 the sponsors would like you to attend: California voters have already approved the use of the 14 words contained in the proposition.

But what kind of argument is it?

The phrasing of the argument makes it appear the simplest conclusion in the world to draw. Of course you ought to approve of Prop 8: it’s exactly the same language proposed in 2000, and so many of you approved of it back then.

However, Proposition 8 is not a proposition to favour or disfavour a bit of language; it’s a proposition to favour or disfavour an amendment to the California Constitution. The 2000 proposition, which was approved, was not an amendment to the California Constitution. It was a simple piece of legislation, subordinate to the California Constitution. It was a bet, or hope, that it would turn out to be the case that the Constitution would permit defining marriage in the way the Prop 22 (2000) people wanted it to be defined.

So this very first argument offered by the sponsors contains a logical error, deliberately or malevolently. There is no valid analogy between the 2000 vote and the 2008 vote: this vote is a more radical step; an attempt to frame not just what the law says, but what the law will be permitted to say.

No one ought to be moved by this argument by analogy.

Section 2:

The second highlighted section, and its attendant bullet point (Marked in Blue) does three things: (1) it provides an abbreviated history of Proposition 22, (2) it notes the reason why Prop 8 has been written as an amendment, (3) and it provides an argument for why Prop 8 ought to be supported even though Prop 22 was overturned.

The abbreviated history is simply that Prop 22 was overturned. Because Prop 22 was overturned by judges citing the California Constitution (in particular the Equal Protection clause) if any definition of marriage as between a man and a woman is to exist in California it will have to be enshrined in the Constitution.

The argument for supporting Prop 8 despite Prop 22 being overturned is subtle, but it runs like this: California voters as a majority want to define marriage as being between a man and a woman. Only the voters of California have the right to decide what the definition of marriage is, with judicial oversight provided by responsible judges. The judges who ruled against Prop 22 prove themselves irresponsible, by both their ruling and their geography: they are in San Francisco. So the judges are not eligible to provide oversight in matters the voters have decided; they disqualify themselves by being from San Francisco and by being activist. Therefore the voters should pass Prop 8, because un-Californian, irresponsible judges are barring the will of the voters of California and need to be circumvented with a constitutional amendment.

There are two things at work in this argument that bear noting: there is nothing offered beyond geography and the fact of their ruling to overturn Prop 22 that inspires the Prop 8 sponsors to label the judges as activists, and thus disqualify them; also, there is an implied rejection of Federalism in favour of direct democracy, and it is this rejection that is supposed to generate enthusiasm for Prop 8.

That a majority of Californians have, in the past (2000) supported language like that found in Prop 8 has, as has already been noted, no bearing on whether Prop 8 ought to be passed now. But that this argument-from-prior-majority is being offered at all suggests that the Prop 8 sponsors believe the will of the majority, direct democracy, to be the proper over-arching conception of political justice in the state of California. If you accept this, despite the long history of the system of checks and balances enshrined in the separation of the branches, then you will be convinced that Prop 8 should be passed, because you will believe that judicial oversight in general is insulting or irrelevant to the will of the majority. But you have to face, full-on, what this conception of political justice means: Bare majorities may always bludgeon minorities, with your permission. Because you have decided that the protection offered by the separation of powers is less important than guaranteeing that the majority always gets its way.

And by noting that the judges are in “San Francisco” the Prop 8 sponsors are offering not an argument, but an innuendo: either that San Francisco does not represent a real part of California, so the opinions of anyone associated with that geographical region are irrelevant; or that because San Francisco has a history of political activism any judges in San Francisco must be political activists, and their opinions will always threaten the establishment. The term “activist judges” is a term that refers to judges who ignore the law in favour of their political agenda. These kinds of judges, if they even exist, are to be universally spurned and their opinions ought always be overturned. That, I think, is uncontroversial. But by applying the term to judges who ignore the majority in favour of the law the Prop 8 sponsors (and others who have applied this misnomer in the past) attempt to trade on the uncontroversial rejection of activist judges in order to reject non-activist judges who happen to think the constitution does not support the will of the majority. This is the fallacy of equivocation, and the argument it props up should not be accepted by anyone.

If there are any activists, ignoring the law in favour of their political agenda, it is the Prop 8 sponsors who would, by implication, eliminate the separation of powers and the protection and oversight it affords.

Section 3:

The last section of the “About Proposition 8” page of the page (Marked in Green) lists what is at one and the same time the most reasoned and honest argument for Prop 8, and also the clearest reason of all to reject Prop 8.

This section argues that Proposition 8 is a protective measure to ensure that both children are not taught that same-sex marriage is the same, legally (and by implication morally) as heterosexual marriage, and to protect individuals from the consequences of their behaviour toward same-sex couples.

I say this section presents the most reasoned and honest argument for Prop 8 because the premises are true, and with the addition of one extra premise the argument leads to a valid conclusion: to vote Yes on Prop 8.

The premise that permitting same-sex marriage will result in children learning, in school or otherwise, that same-sex marriage is the same both legally and morally as heterosexual marriage is just true. In the same way that other laws on the books, or rights enshrined in the Constitution are learned in school and normalized by their legislation, so too will same-sex marriage be normalized as long as there is no legislation that treats it as somehow different enough that even a child can notice. Opponents of Prop 8 have taken the route of just denying that same-sex marriage will be taught in schools, and admirable as this tactic is, since on its face there is nothing in the law that says schools have to include a discussion of same-sex marriage in their curriculum and so the “we have to protect the children” assault seems like a fallacy, in actuality if same-sex marriage is recognized then it will be recognized by children, even if not because of express changes to curricula. So the sponsors of Prop 8 are just citing a truth when they say that Prop 8 will protect children from being taught that same-sex marriage is the same as heterosexual marriage. This does not mean that their suggestion that schools will include same-sex marriage in curricula is based on anything legitimate, or amounts to anything more than a bare scare tactic, inciting panicked support to “protect the children” from their liberal teachers.

Further, the premise that without Prop 8 individuals will face consequences for treating same-sex couples differently from heterosexual couples is also just true. Individuals or businesses who, right now, do not consider same-sex marriage valid face consequences for engaging in practices that discriminate against same-sex couples. If those individuals and businesses wish to continue to discriminate against same-sex couples then they need a constitutional amendment to protect them. This is not to say that their practices ought, morally, to be protected. But it just shows that there is a legitimate worry for those who wish to continue to discriminate.

The extra premise that is needed to reach the conclusion that we should vote for Prop 8 is of course that the discriminatory practices that are threatened by same-sex marriage ought to be protected, and ought to be protected with the weight of the California Constitution. Alternately, an extra premise that says that children ought never be taught that same-sex marriage is the same as heterosexual marriage is needed to motivate the same conclusion, but from the “protect the children” side of the argument.

In both cases it is this un-expressed premise that does all the work in motivating the conclusion that Prop 8 is necessary, and it is unstated in the argument on the sponsor’s “About Prop 8” page.

Why is it unstated?

It is unstated because it is too honest a statement of the moral views of the Prop 8 sponsors. Although everyone who shares their moral view of same-sex relationships will already agree with the sponsors that Prop 8 ought to be passed, there is perhaps a subset of people who do not share the moral opposition to same-sex relationships and so do not have that to generate the further opposition to same-sex marriage. These people need to be swayed to vote for Prop 8 even though they do not share the moral opposition, so the sponsors offer incomplete, fallacious, and misleading arguments to manipulate these voters into supporting Prop 8 in a way that they can consider legitimate, salving their consciences.


All I have done here is look at the ProtectMarriage.Com website, specifically the “About Prop 8” page, to see why they think we should vote for a constitutional amendment to change the rights landscape in California. Even disregarding every argument to vote against Prop 8 offered by the opposition in California, all of the arguments offered to support Prop 8 on the sponsor page are deeply flawed.

If you are going to vote for Proposition 8 do so because you are fully committed to morally opposing same-sex relationships and gay marriage for all time. Say it aloud. It is the only statement that makes any of the arguments on the sponsor page valid. And be prepared to face those who disagree with you about the morality of same-sex relationships and gay marriage. Because this shifts the debate from the “Why do we need Prop 8?” side of the table to “Is homosexuality wrong?” side. This is, fundamentally, what generates the only valid argument for voting for Prop 8. But it is precisely on this question that you will encounter the most opposition. If it is what you truly believe, then own it. Do not hide behind bad arguments, disguising your real character to make it seem more palatable to those who don’t quite share your moral opposition.

And if you are going to vote against Proposition 8 you need look no further than the sponsor’s own “About” page for reasons to vote against it. Because the reasoning used by the sponsors there is utterly irrational.