Judge Walker’s Prop 8 Ruling and the Foolishness of Crowds

In reflecting on the recent Prop 8 ruling which now allows marriage equality in California once again, my partner, Glen Retief, considers mob mentality and the need from time to time for an “adult” to step in and burst the bubble.

Are crowds wise or foolish?  This is the deeper philosophical question underlying Judge Walker’s judgment that California voters’ restriction of marriage to a union between a man and woman amounted to illegal and irrational discrimination.

This may not have been the literal legal principle at stake—whether hordes of people acting together tend to make good or bad decisions about matters such as minority civil liberties.  But it certainly was a subtext, as Judge Walker, in his robes and book-lined study, displayed an elegance of logic, a depth of thought, and a breadth of knowledge about human sexual diversity for which even his critics expressed admiration.

I’m certainly not out to insult the average Calfornia voter, here.  When I think of the folks who voted both for and against Prop 8, I picture, in fact, someone much like me—a middle-aged man or woman in a Ford Escort, stopping by the voting booth between grocery-shopping and picking up the cats from the vet.  I’m an educator and a memoirist, with little time for legal debates.  When exactly does your regular teacher, accountant, or bricklayer get the leisure to read through tomes on the equal protection clause or on the changing social function of marriage?

Yet,  it seemed clear that for a significant portion of the American population, in a democracy it is precisely ordinary people—however ignorant and unqualified—who should be allowed to vote on their neighbors’ basic rights.

Some full disclosure, here:  As a partnered gay man I had a great deal to celebrate last week in the Prop 8 ruling.  If the decision stands, I won’t have to worry about my partner lacking Social Security benefits if I die before he does.  We’ll save precious thousands of dollars a year on simple things like federal taxes on the health insurance my employer buys him.  If we get into a car accident, no apathetic or homophobic nurse is going to stop us visiting each other.

As a South African immigrant, too, I was happy about Judge Walker’s logic: I could finally see my adopted country catch up with my home nation regarding civil rights.  South Africa banned antigay discrimination, along with lots of other kinds, in its 1996 Bill of Rights—the same year as the Defence of Marriage Act in this country.

There is something inherently humiliating about having to ask my neighbors’ and lawmakers’ permission to get married—as if, instead of just having to ask the father of the bride, a young man had to ask 300 million Americans if it was OK to wed his sweetheart.  Judge Walker restores me some of my dignity.

But as I mulled over the import of Walker’s reasoning last week, I actually found myself reacting much less as a gay man than simply as a human being, someone who thinks a lot about human discernment and idiocy—and quite avidly participates in both.

Ever since I lived through the Florida housing bubble from 1997 to 2006, I’ve enjoyed reading a book called Extraordinary Popular Delusions and the Madness of Crowds, by Charles MacKay.  In it, MacKay discusses all manner of fashionable insanities, from the Dutch tulip mania of the early seventeenth century, when single bulbs sold for more than quaint country cottages, to the European witch trials, which resulted in the brutal burning of thousands of innocents.

What I recall most vividly about the Florida housing bubble—the most vivid illustration of mass delusion in my lifetime–was how astonishingly universal the enthusiasm was: cocktail party talk revolved endlessly around how everyone was getting rich.  Unbuilt condos were bought and sold months later for six digit profits.

Wander around a South Beach bar today, and you won’t have go far to find someone to rail against Alan Greenspan for not raising interest rates in the mid-2000’s—this in a state now suffering mass unemployment and expanding soup kitchens.

Yet, Greenspan would have been roasted from Peoria to San Diego had he done anything of the sort in 2002.  While things were going well, our collective judgment felt gloriously infallible.  The last thing we wanted was “a monarch in a robe”—to use a phrase used to describe Walker—to tell us we shouldn’t be watching our house valuations soar.

Which brings me back to last week’s ruling.  The learned judge is simply right about the sheer irrationality and insanity of heterosexism, about its lack of grounding in any facts at all, about its cruelty.  Antigay persecution is perhaps as sadistic and unnecessary as the medieval witch hunts discussed by MacKay, even if much less violent.

For many Americans, Walker’s message clearly wasn’t a welcome one.  But when is it ever fun to learn about one’s ignorance?  For most of us, that’s about as pleasurable as watching our house’s value plummet.

Glen Retief teaches creative nonfiction at Susquehanna University.  His memoir, The Jack Bank, will appear in April 2011, from St. Martin’s Press. Glen Retief


This post has 5 Comments

  1. Joe G. on August 16, 2010 at 10:54 am

    Did you get permission from the author before you quoted him so extensively?

  2. p2son on August 16, 2010 at 11:02 am

    I have special access to the author.

  3. Michael R. on August 16, 2010 at 4:13 pm

    Thank you, Glenn, for that great post.

    It seems the only thing opponents of marriage equality have left is that old argument (and recently popular phrase) argumentum ad populum. The groups supporting Proposition 8 have known for years that the way to maintain discrimination was to push popular votes before the anti-gay majority slips away, as it slowly and inevitably is. Sadly, it’s only as popular opinion is slowly swinging against discrimination that this court decision has come about. Court decisions against other forms of discrimination preceded popular opinion, not the other way around.

    The comparison to the cases in MacKay’s book is so appropriate. The US was founded by idealistic men dedicated to the idea of equality in a day when it was a very radical idea. At the same time Washington and Jefferson and many others owned their fellow men and robbed natives of their land while their wives and daughters were thought to be naturally inferior. It has taken centuries for equality to really mean equal but it’s slowly happening and can’t depend on the will of the majority. Majorities can stifle oppressed minorities and be swayed by PR campaigns too easily, as we’ve all seen with Prop. 8.

  4. Joe on August 17, 2010 at 5:01 am

    It’s very easy to pick out “mass delusions” we disagree with. It’s much more difficult to identify which of our own common sense or “consensus” opinions will be dismissed by future generations as “fashionable insanities”.

    It would be very surprising if “gender studies” has a longer shelf-life than Marxism or Freudianism.

  5. paul on August 17, 2010 at 6:57 am

    I am ever mindful that a primary driving force behind much of the anti gay legislation, such as prop 8, is often the so called religious right.

    One of the tenants of Christian fundamentalist belief is the idea that “God” has appointed our rulers, and their decisions are to be respected as from “him.” Majority rule doesn’t fit the profile.

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