On Civil Disagreement
And Why Prop 8 is Different
Yesterday Brendan Eich—creator of JavaScript, founder of Mozilla, and long-time CTO of Mozilla—stepped down as CEO of the Mozilla Corporation after only a week on the job. That week was spent rehashing a controversy over his 2008 donation to California’s Proposition 8, which amended California’s Constitution to ban same-sex marriage.
I don’t know whether Brendan Eich should have been promoted. I don’t know whether he should have stayed on the job. I don’t know whether he should have stepped down. These are not questions I want to address.
I want to address the characterization of the controversy as a tension between equality and free speech. This characterization is wrong.
The history of same-sex marriage in California goes back to 1971, when the State Legislature passed AB 607 which amended the Civil Code to define marriage as “between a man and a woman”. In 2000 California voters debated Proposition 22, which amended the Family Code so that “only marriage between a man and a woman is valid or recognized in California”, to prevent out-of-state same-sex marriages from being recognized in California. These laws were enacted as ordinary statutes as part of the normal legislative process where the people of California expressed their will, either via their elected representatives in the State Legislature or through the direct democracy of California ballot propositions.
On these two occasions, proponents and opponents of same-sex marriage exercised their rights of free speech and debated their political disagreements. The democratic process worked its course, and the majority opinion prevailed against same-sex marriage.
But no one who believes in liberal democracy as an ideal believes it should be merely a tyranny of the majority. Liberal democracies distinguish themselves from mere majoritarian rule by granting protections to minorities and individuals. To this end, the US political system recognizes constitutionally protected individual liberties, limits the scope of government power over individuals, and separates the judiciary from the legislature.
And so the democratic process was not done with the issue of same-sex marriage. In 2008, the California Supreme Court found that AB 607 and Prop 22 infringed on same-sex couples’ constitutionally protected rights to marriage and to equal protection under the laws. The bans were struck down and same-sex marriage became legal in California. The checks and balances of a liberal democracy worked to protect a vulnerable minority from the tyranny of the majority.
The democratic process should have ended there. Unfortunately, a bug in the California Constitution allows a simple majority of the population to approve a constitutional amendment. Whereas AB 607 and Prop 22 stripped a minority of their right to marry, Prop 8 went much further. Prop 8 was a constitutional amendment that stripped a minority of their constitutional rights to equal protection under the laws, to due process, to judicial protection from legislative action, and to protection from the tyranny of the majority.
Prop 8 was not just a political disagreement. Prop 8 was constitutional disenfranchisement. Prop 8 was not about same-sex marriage, but about the very core of what it means to be a liberal democracy. A simple majority was able to strip a minority of protections that had been enshrined in the California Constitution, protections put in place specifically to defend minorities from the whims of the majority, and when the very body set up to evaluate those protections had deemed that they applied in this case.
This is why Prop 8 is different. It is wrong to characterize Prop 8 as just a political disagreement over same-sex marriage. Defenders of Brendan Eich can’t claim that he was merely expressing a political opinion and that he should be allowed to exist in polite society without reprehension. That claim might be tenable if he were supporting a public policy like AB 607 or Prop 22, but it is entirely unreasonable if he supports targeted constitutional disenfranchisement like Prop 8. The bounds of acceptable political activism against a minority population should stop well short of constitutional amendment. Prop 8 is different because it altered the very fabric of democracy to achieve a political end.
Only a deeply broken political process can see constitutional disenfranchisement as “just a difference of opinion”.
As I said, I don’t know whether Brendan Eich should have been promoted, I don’t know whether he should have stayed, and I don’t know whether he should have stepped down. But I do know that it is right to be upset at him. It is right to call him out for taking political action that goes beyond the pale. It is not the hounding of a heretic for being insufficiently liberal. It is justified outrage at overstepping the bounds of acceptable political action. Prop 8 may have changed the letter of the law about the acceptable conduct of majorities towards minorities, but this week demonstrated that it did not change the spirit of a democracy.
