"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.