"Court of Public Opinion" is a mostly misleading metaphor for an election. In an election, no rules prohibit fear-mongering from masquerading as evidence. No impartial judge renders the verdict. Voters write no opinion explaining what they were thinking.
And yet the recent court victory in Perry v Schwarzenegger can teach us vital lessons about how to run a better campaign for same-sex marriage at the ballot box. Different though the environments are, the courtroom tactics of Boies and Olson could help us remedy two of the most crippling deficiencies of the No on 8 campaign when it sought to protect same-sex marriage but fell short.
First: to win, we have to put on a case. The attorneys for same-sex marriage forcefully presented a clear, honest, positive picture about same-sex couples' lives. They presented clear evidence that allowed the judge to find as a fact that:
"Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners."
Likewise, the new, comprehensive analysis of the Prop 8 campaign (released one day before the court decision) documents the value of the same direct, clear approach in an election. Its data show that the only two TV ads created by the No on 8 campaign that made voters more likely to support same-sex marriage were the only two that used the word "gay" (none of the other fourteen breathed a word about whose lives would be most affected by Prop 8) and that made clear, direct arguments on the merits. All of the rest were de-gayed, and had no impact as they offered platitudes, vagueness, unexplained endorsements, and abstract analogies.
Both in elections and in court, same-sex marriage can't win when we don't make the case for it. The basic facts are necessary (if not always sufficient) to persuade decision-makers to see it our way.
Second, to win, we have to clearly and forcefully expose and rebut appeals to prejudice. Boies and Olson used the opposition's TV ads against them. Again, the court found as a fact that:
"The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child."
Similarly, The Prop 8 Report shows that only after the No on 8 campaign directly rebutted the appeal to anti-gay prejudice did it start to win back voters lost to the attack ads. No on 8 hemorrhaged support almost daily until it aired a rebuttal ad October 22. The situation then began to improve, but it was too little too late.
Granted, it takes guts to make a clear, direct case with the voters on behalf of a stigmatized group. There is always the possibility that prejudice will simply carry the day. Courts have a better reputation than voters for responding to reason.
But Prop 8 and the other 33 losses on same-sex marriage at the ballot box suggest that we get nowhere when we give voters nothing to help them reject anti-gay prejudice, and when we let the opposition unilaterally and very unflatteringly define what gay people are like.
We have to make our case. It may not be enough to prevail, just as Perry may not survive Supreme Court review. But it is the necessary first step, and it is time we took it.
David Fleischer directs the LGBT Mentoring Project and is author of the Prop 8 Report, full text at Prop8Report.org.
Rita Nakashima Brock, Ph. D.: Prop 8, Judge Walker and the Biblical View of Marriage Equality
Newsflash, Flippy, the judge is a CONSERVATIVE appointed by Ronald Regan and moved to the Federal bench by George Bush Sr. Any more distortions you'd like to add?
All I read is that TV ads made zombies out of Californians and they can't think for themselves. How sad that so many folks believe the elite left and liberal judges are the only people that are enlightened enough to make a decision. How sad to assume so many great Americans make all their decisions based off 30 and 60 second TV ads. This is a dangerous precedence when a judge overturns the will of the people in a democratic society. Regardless of the issue, this is bad for both sides......
The scripts were returned: "Not in perfect TV format and not on message." A phone call to a "point person" let me know the campaign had no interest in my message.
I asked what the "message" was to be. They hadn't decided and judging from the campaign never did know.
In 2000 I gave a large amount of money and volunteered time for No on Prop 22. Every canvassing meeting was cancelled, moved at the last minute, or total unorganized. I was always asked to "donate more money."
Back in the mid-90's I was a member of HRC and sent donations and letters asking what I could do for the Hawai'i marriage case, being a frequent visitor to the islands. The case was "too controversial" and not on their agenda.
I'm 60, my husband's 72. Together 35 years. We don't feel we are part of "campaigns."
It's one thing to face bigotry most of your life from society. It's quite another for "friends" and "family" to turn their back, but always ask for more money.
The "gay agenda?" Life time employment for a select few "political" organizers (opportunists).
You said exactly what I think happened. The opponents of Prop 8 did not get organized quickly enough and the supporters of the resolution took advantage of that weakness with a strong campaign based on arguments that couldn't hold up legally.
I appreciate you assuming I'm a nice guy. Occasionally, someone else says that, too, but I'm more inclined to agree with the people who think otherwise. Peace.
Having said that, I look to courts for any kind of justice. After electoral defeats with churches and organizations like the FRC and other h8 groups spending millions and saying lies to prevent us from equality, I feel that the courts are our best hope.
But the author's basic points are correct...the gay community has to meet the lies from the right and the churches, head on. Prop 8 passed on large part by support from African and Hispanic women voting for it. While the "liberal" position on other props has winning that year, it was different with Prop 8. ( Although I'm also sure Gavin Newsome with his "we're coming whether you like it or not", speech also didn't help matters much).
There needs to be more outreach to the African American community and Hispanic communities for the same sex marriage props to win.
You yearn for a society created in your own secular humanist image where all are compelled to accept & celebrate high-risk, unnatural and fruitless homosexual behavior as both normal & equal to natural expressions of human sexuality. In your society, inherent gender distinctions are eliminated & God's express design for human sexuality is replaced by morally relative, surreal notions of sexual androgyny.
You desire to use 'same-sex marriage' as both a tool to normalize your behavior and as a weapon to tear down the institution of legitimate marriage.
All men and women in the US have equal access to marriage. But under the very definition of marriage (one man-one woman) no person has the right to marry more than one person at a time or to marry a minor child, a close relative, an animal or a person of the same sex. Generally speaking, any man can marry any woman. Just because one may choose not to do so, does not mean that he cannot do so. And just because one defines his identity based upon his choice to mimic sexual intercourse with persons of the same sex, it does not preclude him from marrying within equally applied parameters. He has equal access to marriage and by definition enjoys 'marriage equality.'
Can i marry your daughter? I'm sure I can make her happy,
Reality is, this issue will be in limbo until it reaches the SCOTUS and then they will uphold the vote that the CA majority made. But continue blaming the Mormons if it makes you feel better.
CaballeroKid wrote, "we could easily justify all kinds of inappropriate relationships."
Contrary to your opinion, for homosexuals, homosexuality is certainly an appropriate relationship.
He wrote, "allowing marriage to occur on any other level other than between a man and a woman affects all of us."
Please tell me how you and your wife have been personally affected by the right of gay people to be married in five states.
I finally gave up anddid what I could on my own.
The first state marriage law to be invalidated was Virginia's miscegenation law in Loving v Virginia (1967). Mildred Jeter, a black woman, and Richard Loving, a white man, had been found guilty of violating Virginia's ban on interracial marriages and ordered to leave the state. The Court found Virginia's law to violate the Equal Protection Clause because it classified on the basis of race, but also because the law would violate the Due Process Clause as an undue interference with 'THE FUNDAMENTAL FREEDOM" of marriage.
In Zablocki v Redhail (1978), the Court struck down a Wisconsin law requiring persons paying support for the children of previous relationships to obtain permission of a court to marry. The statute required such individuals to prove they were in compliance with support orders and that marriage would not threaten the financial security of their previous offspring. The Court reasoned marriage was "A FUNDAMENTAL RIGHT" triggering "rigorous scutiny" of Wisconsin's justifications under the Equal Protection Clause.
In Turner v Safley (1987), the Court refused to apply strict scrutiny to a Missouri prison regulation prohibiting inmates from marrying. Instead, the Court found the regulation failed to meet even a lowered standard of "reasonableness" that could be applied in evaluating the constitutionality of prison regulations.