The passage of Proposition 8 in California, which amends the state constitution to limit the definition of marriage to a union between a man and a woman, is a huge disappointment for the state's gay and lesbian community. However, it should have relatively little impact on sellers of adult novelties and sex toys.
Given the amount of controversy and debate Proposition 8 generated, the text is remarkably brief: "Only marriage between a man and a woman is valid or recognized in California." Altogether, advocates on each side spent a total of $73.4 million, or roughly $5.6 million per word. There are a large number of provisional ballots yet to be counted, but with the "yes" contingent leading by more than 500,000 votes, there is little likelihood that the constitutional initiative will be defeated.
Fortunately for the adult business community, the focus of Proposition 8 was exceedingly narrow. It applies only to the issue of gay marriage and is not retroactive—all of the same-sex marriages that took place prior to the passage of Prop. 8 are still valid, hence the last-minute rush of many couples to get married before Election Day. There is nothing in the proposition that directly affects the sale of adult novelties, regardless of whether the intended consumer is straight, gay, or otherwise.
OTHER STATES
California was not the only state with an anti-gay marriage proposition on the ballot. Similar initiatives succeeded in Arizona and Florida, both winning by large margins. In addition, an anti-gay adoption statute passed easily in Arkansas.
It is tempting, in the wake of an emotional defeat, to view these results as signs of new anti-gay movement in the country, one that could eventually lead to the shuttering of brick-and-mortar adult novelty shops. But for a variety of reasons, that's unlikely.
BUT FIRST, A LITTLE BAD NEWS
Adult novelty sellers won't be entirely unaffected, unfortunately. The most concrete impact of the Prop. 8 vote is that the halt of gay marriages in California means no more Jack-and-Jack or Jill-and-Jill showers, which in turn means fewer opportunities to give sex toys and novelties as gifts.
In fact, California wedding-related retailers of every description will see a decline in revenues. Unless a huge number of straight couples celebrate the passage of Prop. 8 by tying the knot (which is not something that's happened in other states), there will be fewer wedding photographs, cakes, hall rentals, wedding singers, and honeymoon packages.
The passage of Prop. 8 means just two states—Massachusetts and Connecticut—permit same-sex marriages for the time being. To the extent that it is important to a gay couple to be married, as opposed to joined in a civil union, the East Coast states will benefit from a new surge in wedding tourism.
SOME GOOD NEWS
Although the passage of Prop. 8 was deeply upsetting to political and social progressives around the country, the news was not all bad. Nationally, of course, the success of the Obama-Biden ticket and the rise in the number of Democrats in Congress suggests a more tolerant approach to gay and lesbian issues, although it should be noted that President-elect Obama favors civil unions over gay marriage.
In California, the strong showing by the national Democratic ticket helped state Democrats pick up additional seats in both the Senate and the House of Representatives. While it looks like Democrats will fall just short of the two-thirds majority required to pass a spending plan over any objection by Governor Arnold Schwarzenegger, the results make it more unlikely that any statewide legislation targeting sexually oriented businesses will gain much traction in Sacramento.
Moreover, an analysis of Prop. 8 voting patterns shows that it was overwhelmingly opposed by voters 25 and younger, a trend that bodes well for the future. It is worth noting that the anti-gay marriage forces barely garnered the necessary votes to pass the proposition this year after receiving more than 60 percent of the vote a few years ago.
For a variety of reasons, cable television and the internet among them, teens and young adults tend to be more sex-positive than their elders. That's a trend that should benefit not only gay marriage proponents but the adult novelty business as well.
ALL POLITICS ARE LOCAL
Although gay marriage is going through something of a rocky patch, the adult novelty business has reason to be optimistic. First, it should be pointed out that there has never been a statewide referendum about sex toys, and it is unlikely that there will be. (It's hard to imagine how that might be worded: "Vote No on the Big O"?)
As most store owners are aware, the two greatest legal threats to adult novelty businesses are statewide sex toy bans and local zoning ordinances. Even there, however, there is room for optimism. The Texas sex-toy ban was struck down by a federal appeals court, and efforts to institute similar bans in other Southern states have stalled.
More problematic are changes to local zoning regulations that place tight, often unconstitutional restrictions on sexually oriented businesses (SOBs). Such laws are most common, of course, in socially conservative communities, and there is a fairly well-organized cottage industry of SOB ordinance promoters that share resources, law firms, and contributors.
Fighting these ordinances is difficult, because many people are still reluctant to suggest to their neighbors that they are supportive, or even tolerant of, adult businesses. Again, however, this is a situation that will improve as today's younger voters become homeowners, and as the adult industry outgrows its seedy past. And one final factor may help: a struggling economy. Adult businesses tend to hold their own during times of economic downturn, which generally speaking makes them more stable tenants and business customers.
ELECTIONS MATTER
If there is one lesson that adult business owners should take away from the passage of Prop. 8, it's that it is critical to pay attention to politics. Elections are somewhat less important for business owners who sell politically neutral products like flowers or books, but they are critical to businesses that specialize in products that blend commerce and social mores.
Frederick Lane is an attorney, expert witness, lecturer, and author who has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. He is currently finishing work on People in Glass Houses: The Right to Privacy in the Age of Electronic Voyeurism (Beacon, 2009). For additional information, call 802-318-4604 or visit FrederickLane.com or ComputerForensicsDigest.com.
