As readers of my FindLaw columns and this blog surely know, I think that same-sex marriage should be legal. (See, e.g., here, here, here, and ) Thus, were I a California voter, I would unhesitatingly vote no on Prop 8, which would amend the California Constitution to forbid same-sex marriage.
Suppose some Californian opposes same-sex marriage. Might she nonetheless have good reason to vote no on Prop 8? Perhaps.
One set of arguments---which I find unpersuasive but others find persuasive---envisions liberty and equality as a ratchet. In this view, once the California Supreme Court recognized a right of same-sex marriage, the burden of justification for those who would eliminate the right was raised: Eliminating a right, in this view, is a much more serious matter than simply not recognizing it in the first place.
As I have argued elsewhere (in particular, here), we should resist the notion that rights should only ever be expanded. Some rights are zero-sum: The "right to work" of employees typically means no right to organize for unions; more starkly, the right to own slaves entails no right (of some people) not to be enslaved. Embracing one right means sacrificing the other.
Despite the rhetoric (and apparently the subjective beliefs) of marriage traditionalists who fear that recognition for same-sex marriage somehow devalues opposite-sex marriage, there is no clear sense in which this is true. The right of a same-sex couple to marry does not in any tangible way undermine the same right of an opposite-sex couple.
Nonetheless, even some non-zero-sum rights should not be recognized and/or taken away. Partly that's because some nominally non-zero-sum rights are really zero-sum if the interests are properly calculated. Thus, to my mind, a right of humans to hunt entails no right of (the permissible target) non-human prey to avoid death by hunting. But we can imagine some "silly" rights that while truly non-zero-sum, nonetheless should be eliminated. If somehow the California Supreme Court had recognized a state constitutional right to go bowling, the voters would be acting appropriately by eliminating that right---not because bowling is especially dangerous or immoral or harmful in any way, but because it's just not the sort of thing that should be handled through the mechanism of constitutional rights. I suspect that some supporters of Prop 8 feel this way about same-sex marriage. I certainly don't feel that way, but right now I'm looking for an argument to oppose Prop 8 that might appeal to an opponent of same-sex marriage.
To my mind, the best such argument is the chaos that could ensue from having to deal with the thousands of same-sex marriages that will have been performed between the California Supreme Court's ruling and the enactment of Prop 8. The literal language of Prop 8 is broad. It provides that "only marriage between a man and a woman is valid or recognized in California." Does this mean that a same-sex marriage that was performed in September, say, is not "valid or recognized" after Prop 8 becomes law? The most straightforward reading of the measure is yes, i.e., already married same-sex couples will cease to be married in the eyes of the law. That is quite unfair to these couples. Yet if, as many observers think, the California Supreme Court would rule Prop 8 non-retroactive, then California will have the oddity of thousands of marriages that continue to be valid even though condemned by a majority of the state. There might even follow another ballot initiative to clarify that Prop 8 was retroactive. A voter who weakly opposes same-sex marriage might think that the potential issues over retroactivity are too much trouble, and so simply vote against Prop 8 in the hope of being done with the question.
Posted by Mike Dorf