The telltale moment came during the federal trial challenging Proposition 8, which stripped away gay couples' freedom to marry in California. Chief Judge Vaughn Walker asked Charles Cooper, the attorney defending Prop 8, "What would be the harm of permitting gay men and lesbians to marry?" Cooper replied, "Your Honor, my answer is: I don't know ... I don't know." That pivotal exchange, and indeed the whole trial, showed that opponents of the freedom to marry are not able to defend their position on its merits.
When I was in law school, they taught us: If the law is against you, argue the facts. If the facts are against you, argue the law. If neither's on your side, pound the table.
A "pound the table" strategy is exactly what our opponents have opted for in court cases, in waves of ballot-measure attacks, and in the dust they throw up through the media. As Adam Liptak recounts in today's New York Times, the anti-gay forces now routinely rely now on diversion and fear-mongering to distract from the reality that when more committed couples join in marriage, families are helped and no one hurt. As Americans have begun to see that reality -- in the District of Columbia, as well as Massachusetts, Iowa, Canada, Spain, South Africa, and the other places that have ended exclusion from marriage -- so the opponents of gay people's freedom to marry have shifted to a succession of distractions: stoking fears about kids, making false claims about infringement on religious freedom, and, most recently, drumming up allegations of harassment and violence.
In early 2009, Frank Schubert and Jeff Flint, the architects of the California campaign, published a revealing article, "Winning Prop 8," confessing their strategy of deliberately avoiding a debate on the merits of gay people's freedom to marry because the majority of voters were opposed to revoking equality in marriage. In our opponents' own words, "Passing proposition 8 would depend on our ability to convince voters that same-sex marriage had broader implications for Californians and was not only about the two individuals involved in a committed gay relationship...[A] campaign in favor of traditional marriage [sic] would not be enough to prevail."
As anyone who followed the Prop 8 campaign knows, the "broader implication" Schubert and Flint selected was a fabricated connection between marriage and school curricula. They flooded the airwaves with tens of millions of dollars of advertisements conjuring up fears about "homosexual indoctrination" of children. To turn the tide in favor of Prop 8 Schubert and Flint by their own admission had to distract from a discussion of what the initiative really was about - eliminating gay people's right to marry - and whip up incendiary fears about schools and kids.
The latest round in this diversion strategy has been to claim that the perpetrators of the anti-gay ballot-measures are somehow themselves the victims of a concocted "harassment" campaign. The diversion has unfolded in much the same way the phantom "death panels" nearly hijacked the recent debate over health-care. First, the Heritage Foundation spun out a publication asserting that supporters of the anti-gay proposition had been "subjected to harassment, intimidation...[and] violence." This was then dutifully repeated by the likes of Rick Santorum, Ed Meese, Maggie Gallagher, and the now-familiar multi-million dollar right-wing echo-chamber. The anti-gay legal teams then filed briefs in courts quoting their own media to block the public's ability to watch coverage of the Prop 8 trial, and to hide the funding and support behind anti-gay ballot measures such as Prop 8 and Referendum 71, the 2009 measure in Washington State aimed at undoing, not the freedom to marry, but a mere domestic partnership law.
With the U.S. Supreme Court about to hear argument later this month in Doe. v. Reed, the concerted effort by the Referendum 71 groups to block Washington's longstanding disclosure rules on ballot-measures, the facts regarding the diversion strategy are now at last squarely in the public eye. Last week, the nation's leading gay legal organizations filed a powerful brief methodically refuting the bogus and "cynical" claims of victimhood and intimidation. The brief filed by Lambda Legal, GLAD, and others notes that, "When subjecting a minority group to political attack, a common tactic is to claim that the minority itself is the aggressor from whom protection is required." The real harms in this latest human rights struggle are the injuries, indignities, and inequality inflicted on committed same-sex couples denied the freedom to marry and the protections, responsibilities, and rich meaning marriage brings to families.
It's time to stop the table-pounding and allow Americans a conversation about the freedom to marry rooted in evidence, reason, and fairness. The diversion strategy of the anti-gay campaigners should not obscure the real truth of the matter: The reason smart lawyers like Charles Cooper don't give a better answer to why marriage discrimination should be allowed to continue is that there isn't one.