On Wednesday, October 6, I participated in a public panel discussion of the Perry vs. Schwarzenegger case and the constitutionality of denying same-sex couples the freedom to marry. Hosted by the renowned public policy organization The Aspen Institute, the program was to include Chuck Cooper (counsel for the Proponents of Prop. 8 in the Perry case), Matt McGill (one of the senior lawyers for the plaintiffs in the case), and Prof. Helen Alvare of George Mason Law School (who has worked in the past for the National Conference of Catholic Bishops and has assisted the Holy See). The dialogue was to be recorded and made available online.
The day before the program was to be held, CSPAN indicated it was interested in televising the discussion. Hearing this, Chuck Cooper refused to participate and withdrew, based on opposition to having his discussions of the case appear in any way that could be seen by judges who might rule upon the case. At this point, Prof. Alvare also objected to a recording of the dialogue even being placed online (although that had been part of the terms of the original invitation) because, she said, prior public debates she had participated in had led to her receiving threatening phone calls and her husband urged her not to do something that might lead to that recurring. As a result, CSPAN was disinvited and the discussion was not put online.
While these events may not seem momentous, they are emblematic of a frightening strategy increasingly used by the opponents to equal rights for gay people. The Perry trial could not be televised, they argued, because expert witnesses, whose job is explaining their views to the public, might be intimidated by the public attention. Now, apparently, even discussions of the case are to be shielded from the general public. The narrative they have used to justify this is that they supposedly are the victims, not those whose rights they seek to deny. Gay people are the bullies, they assert, not those who discriminate against and harass us. They are afraid, they say, although we are the ones repeatedly murdered or driven to suicide.The truth is that their arguments are built upon nothing more than fear and stereotypes and they do not want to have their sound-bites subjected to evidentiary or sustained analytic scrutiny by the public.
This strategy of secrecy was also employed in the Doe vs. Reed case, which was heard by the United States Supreme Court earlier this year. In that case, the group that sought to place an initiative on the Washington ballot to repeal the state's domestic partnership law claimed that those who signed petitions to place that measure on the ballot had to have their identity kept secret, lest they be targeted for harassment. Although the United States Supreme Court ruled that petition signers in general have no right to privacy, the antigay group is continuing with the lawsuit, claiming that theirs is a special case. Similarly, the National Organization for Marriage, which has raised millions of dollars to support ballot measures to prevent same-sex couples from marrying or entering civil unions, has filed lawsuits in several states to keep the identity of its donors secret.
Our nation has much to fear from these tactics. Allowing those who would deprive others of their rights to act in secrecy allows them to act free of any accountability. While the histories and tolls of racism and homophobia are not the same, banning efforts to oppress others without accountability is the reason why there are laws that prohibit members of the KKK from engaging in their activities in hoods. Such concealment is not part of our American tradition. As even conservative stalwart Justice Scalia said in his opinion in the Doe vs. Reed case:
"There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which ... campaigns anonymously... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."
In the 1970's, there was a song called The Revolution Will Not Be Televised, but with 24-hour news and the internet, much has changed in the coverage of public debate. If we allow political efforts to take away civil rights to proceed under the cover of secrecy, and give in to those who object to even having public discourse about those efforts be televised, this country will be in even more serious trouble.
How will Donald Trump’s first 100 days impact YOU? Subscribe, choose the community that you most identify with or want to learn more about and we’ll send you the news that matters most once a week throughout Trump’s first 100 days in office. Learn more