Faith-Based Litigation

David's constitutional equal-protection analysis is a respected one with a long pedigree in the Court's cases and in gay-rights legal theory. My aim is not to comment on the merits of that argument, but to make a somewhat different observation: for all the heroic feats of the Warren era and a few other decisions here and there, the federal courts have not been white knights riding in to save beleaguered minorities. As David knows well, we cannot rely on courts alone, or even on courts primarily, as a way to advance policies (or rights, if you prefer) resisted by popular majorities.

The Olson-Boies litigation is an act of faith in the heroic myth of the courts. It is faith-based litigation. Veteran court observers and litigators in gay-rights circles knew better than to act on this faith right now, which is one big reason they initially opposed the suit (another big reason is that they did not want to lose control), although they certainly share the commitment to the constitutional arguments.

Solely as a tactic to advance the cause of gay marriage, the Prop 8 litigation has offered two possible gifts. First, it might actually result in a constitutional win, giving us nationwide gay marriage decades ahead of legislative action. I doubt this will happen, even more now than when it was filed last year, for reasons I outlined yesterday.

Second, the process of litigation itself, win or lose, might educate the public about gay marriage. Through lawyers' arguments, brilliant briefs, landmark published decisions, and the live testimony of witnesses on both sides -- the sacraments and holy texts of lawyers -- the public might come to see how compelling the case for SSM is, and how thin or even hateful the opposition is. That has been the theory.

Now the theory meets fact. Other than those with committed views on SSM, nobody is paying attention to this trial. True, the pro-SSM and anti-SSM blogs are full of "coverage," which consists mostly (David excepted) of hooray- for-our-side commentary. Yesterday, while we reveled in the latest devastating analytical blows to Prop 8, its supporters were deriding the trial as a "desperate" attack on religion, which was halted by an "impenetrable roadblock" from their expert witness.

The public is oblivious to all of this. The Supreme Court precluded any possibility of a wider educative impact by stopping even limited broadcast. Now all we have is a transcript, in all its black-and-white glory. There has been no coverage of the trial on television and very little of it in major newspapers. Yesterday, the New York Times ran a three-paragraph story in the lower right-hand corner of page A13. That's been about it. Meanwhile, there's Haiti. There's healthcare. There's the ongoing meltdown of the Obama administration and the Democratic Congress. But even if these things weren't happening, something else would be sucking the oxygen out of the image-less Prop 8 trial.

At this point, the best outcome for SSM in the Prop 8 litigation might well be a loss in the Ninth Circuit. This would limit the harmful precedential effect of the case, allowing the Supreme Court to defer consideration of the constitutional claims so ably defended by David and others.

We don't need more faith-based litigation. We need to do the hard political work of persuading people that they have nothing to fear from the happiness and security of gay families. That is being done in only a very limited and indirect way in the Prop 8 trial, at potentially high cost. We need much more focus on democratic processes. Fortunately, that work has begun and is showing signs of success, both in polls and in legislatures.

Bad to Worse

As a legal strategy, the Prop 8 litigation was always a high-stakes bet. The bet was that there were either five votes on the Supreme Court to strike down Prop 8 or that, by the time the case works its way up, there would be five votes to do so. And let's face it: if the lower courts strike down Prop 8 the pressure on the Supreme Court to consider the case will be overwhelming. A successful outcome for David Boies and Ted Olson means a successful outcome in the Supreme Court -- not merely a win in Judge Walker's trial court or even a win in the Ninth Circuit Court of Appeals.

Like many others, I was dubious from the beginning about this bet. I don't see how you get to a 5-4 majority on the current Court to strike down Prop 8. The hope has been that Justice Kennedy would join the Court's liberal wing in such a decision. I'm not completely convinced that even this liberal wing -- Justices Stevens, Breyer, Ginsburg, and Sotomayor -- will take on the marriage laws of 45 states. Whatever else one thinks of their constitutional philosophies, the Court's liberals are not nearly as adventurous or as aggressive as their liberal forebears.

But even if they voted to strike down Prop 8, it's even less certain that Kennedy would side with them. If nothing else, the recent decision he joined to prohibit the broadcast of the Prop 8 trial -- a decision that diminished whatever political salience it might have had -- suggests that Kennedy believes the beleaguered group needing the extraordinary protection of courts is the supporters of Prop 8.

Now two factors have made a favorable outcome in the Supreme Court even less likely than when the litigation was filed last year. The first is the election of Scott Brown to the Senate from Massachusetts. This denies the Democrats a filibuster-proof majority. The second is the likely retirement this summer of the most stalwart of the Court's liberals, Justice Stevens.

The possibility of a filibuster of the president's nominee to replace Stevens will likely have a moderating effect on Obama's choice, which means the replacement will be somewhat less likely to vote to strike down Prop 8. With Republican gains in the Senate this fall, any hopes for strongly liberal nominees to replace conservatives before the 2012 election seem even more vain.

All of this is speculation. Maybe Kennedy is on board. Maybe Justice Stevens won't retire. Maybe his replacement, or a replacement for a conservative in the next couple of years, will surprise us. Earl Warren the nominee wasn't Earl Warren the Chief Justice. Maybe the Republicans won't mind letting one strong liberal be replaced by another and will let it go just as the fall election approaches. Maybe lions will lie down with lambs.

But as of now, the Prop 8 litigation bet just went from bad to worse.

Right Call

Despite what I had feared (see here and here), it seems common sense has prevailed. Equality California, the main gay lobbying group in the state, has announced it won't support a Prop 8 repeal effort in 2010. See the group's analysis here. This despite the group's hint last May that it probably would support a 2010 effort. It seems that EQCA looked hard at the voter projections and polls, the short time frame, the lack of unity among gay advocates for 2010, and especially at the lack of support for 2010 among big donors, and has decided to target 2012.

I'm still not persuaded that even 2012 is the right time, but at least it's more realistic. Further, I understand the need to start a fundraising, organizing, and educational campaign now on the basis of a target date that isn't five or more years away (2014 or 2016).

Of course, some of the "grassroots" activists on Facebook and elsewhere who think a campaign is a matter of sending around a bunch of emails and starting a website will continue the quixotic 2010 effort. But without the backing of the main existing California group, and especially without the backing of major donors, they will probably fail even to qualify language for the ballot. At least let's hope they fail, because if they succeed we'll face a real calamity: a 2010 fight we won't win.

Now comes the hard part: actually raising the money and organizing for a possible ballot fight in three years.

Happy Days Are Not Here Again

Congratulations to Billie Jean King and to Harvey Milk (posthumously) for receiving the Presidential Medal of Freedom. I figure these medals, though deserved by the recipients, cost the gay-rights movement about $5 million each.

We were told in 2006 that we needed a Democratic Congress to pass gay-rights legislation. We got one and nothing much happened. Two years later, we were told we needed a filibuster-proof Senate majority. It was delivered, but nothing valuable is passing the Senate. We were told we needed a Democratic president. We elected one and nothing's moving. It wasn't enough. It will never be enough. The problem is not that the Democratic Party is useless, at least not completely. (And useless is still better than hostile.) The problem is not that the president has more important things to do, though he does.

The core of the problem is that every "gay rights" measure is still viewed by politicians, political pundits, and the most energized actvists on both sides, as liberal. That's true even where majorities tell pollsters they support the measure, as with passing ENDA and repealing DADT. Liberals are proud gay rights is their cause. Conservatives are delighted it's not. The association of gay rights and liberalism is easy and unquestioned across the political spectrum -- the last bastion of bipartisan consensus.

But as the healthcare debate is reminding us, this is not a left or even center-left country. We may have a Democratic majority in Congress, but we don't have a liberal majority. We haven't had one since 1965. If we didn't get one after the misrule of the past few years, we aren't going to get one. So electing more Democrats is not the answer, or at least not the whole of the answer. Building grand progressive coalitions is not the answer.

We must break the consensus about gay rights. We must challenge the assumption that gays are just the next group with a list of demands. The political culture must come to see military service by gays as patriotic and honorable, which it is, not as a civil right or as a social experiment, which it is not. It must see gay marriage as an embrace of responsibility and tradition, which it is, not as hedonism or as yet more sexual license, which it is not. It must see gay rights not as left, but as right.

Can the 2010 Train Be Stopped?

It appears that some gay activists in California are starting to doubt the wisdom of pushing to repeal Prop 8 in 2010. One group outlines some considerations that make a lot of sense, including these:

Over $81 million was raised and spent by both sides in the Proposition 8 campaign, more than in any previous anti-gay ballot initiative. Many of the LGBT nonprofit organizations doing critical work for our communities have suffered layoffs and cutbacks in services. . . . Major donors, including foundations that provided funding for critical educational campaigns, have endured hits to their portfolios, and many are exercising caution. Any successful "vote-yes" campaign will require generous support from pro-LGBT institutional donors. These donors give based on evidence of likely success, which for 2010 is filled with grave doubts. It is unlikely that we will be able to raise the necessary funds to undertake an effective electoral campaign until after 2010. . . .

The demographics of opinion on marriage equality indicate that natural changes in the state electorate, with new and younger voters replacing older voters, contributes over time to increased support for marriage equality. In weighing the options of presenting a ballot measure on statewide ballots either next year, in 2010, or in a future year, the latter portends a much greater capacity by marriage equality supporters to leverage and benefit from the natural shift in voter opinion.

Some ACLU leaders, including Matt Coles, think even 2012 is too soon (and they may be right). Equality California, which indicated preliminary support for 2010 back in May, is now (re)considering the issue.

The reality of having to get our act together -- in raising money, strategizing, volunteering, campaigning, and winning -- for an election less than a year and a half away is starting to settle in. At least, that's what I'm hoping.

The View from Twentysomething

A young gay man, fresh out of a Catholic law school, notices a generation gap at this year's Pride festivities in Minneapolis:

One observation I made was that the younger crowd (perhaps ages 18-30) were very tame this year. In past years, I feel like the younger crowd has donned the more traditional Pride garb of brightly colored short-shorts, flip-flops, and perhaps a pooka shell necklace. This year, I noticed the younger crowd was not nearly as sexually provocative in their dress. . . . Most of the younger crowd was dressed normally, dragging along their puppies and dogs.
The older crowd was drastically different. My friend and I were in the beer garden and she and I both commented on how so many "older" men were dressed provocatively and with the purpose of expressing sexuality . . . .
Why the difference? Our twentysomething correspondent theorizes that the prospect of marriage, absent from the lives of older gay men, is starting to have an effect on younger gay men:
As a member of what I consider to be the younger gay community, the past few years have changed my behavior. With gay marriage nascent in Minnesota's and other states' legislatures, and its arrival in many other states, I have tried to put forth my very best behavior. I have encouraged other homosexual people to do the same. . . . The gay community needs to show greater Minnesota that we, as a culture, are the type of men and women that can and should be married with children of our own and leading a publicly respectable life as such. . . .
I think much of the 60s, 70s and 80s were about getting the greater public to realize that gay men and women existed. The "We're here, we're queer, get used to it" mantra was more relevant then than it is now. In the recent 90s and now in the early millennium, the mantra seems to have shifted to "Now that you know we're here, what are you going to do about it?"

Assimilationist? That's one way to look at it. Performative rather than authentic? Perhaps, but radicalism in attire and manner is as much a performance as modesty can be. This writer sees better days ahead:

I think young gay men and women are beginning to see the possibilities for the general gay community and are starting to subdue and prepare themselves for leading a "normal" American life, something that a lot of gay men and women desperately need right now. I know I am and I am definitely looking to the future with high hopes.

Marriage Socialism

I recently stumbled across an interesting essay discussing the connection between free markets and gay marriage, written in 2006 by the prominent legal theorist Ronald Dworkin in the New York Review of Books.

Dworkin argues that culture is shaped, among other things, both organically and by law. Organically, it is shaped "by the discrete decisions of individual people about what to produce and what to buy and at what price, about what to read and say, about what to wear, what music to listen to, and what god if any to pray to." But our culture "is also shaped by law, that is, by collective decisions taken by elected legislators about how we must all behave." Which of these processes - organic or legal - should predominate in the case of same-sex marriage?

What's most interesting about the essay is Dworkin's critique of conservatives who oppose state regulation of markets forbidding evolution in economic practices and arrangements but who invite state regulation of marriage forbidding evolution in familial practices and arrangements.

Socialist societies do give people in power the authority to shape the economic environment for everyone by stipulating prices and the allocation of resources and production. But we insist on a free market in goods and services: we insist, that is, that the economic culture be shaped by a composite of individual decisions reflecting individual values and wishes.

The socialism of a centrally controlled economy is an insult to liberty as well as to efficiency-a view most enthusiastically held by the conservatives who favor a religious model for non-economic culture. They do not realize that liberty is even more perilously at stake in the religious than the economic case. . . .

Everything I said about the cultural heritage and value of marriage is equally true of the general institution of religion: religion is an irreplaceable cultural resource in which billions of people find immense and incomparable value. Its meaning, like that of marriage, has evolved over a great many centuries. But its meaning, again like that of marriage, is subject to quite dramatic change through organic processes . . . . American religious conservatives, even those who regard themselves as evangelical, do not imagine that the cultural meaning of religion should be frozen by laws prohibiting people with new visions from access to the title, legal status, or tax and economic benefits of religious organization.

Within broad boundaries, conservatives believe, markets should be shaped by individual decisions. The presumption in markets should be against central regulation. A similar principle would apply to religious beliefs and practices - they should be allowed to develop organically.

Same-sex marriage is the product of an ongoing, organic process that reflects the values of millions of our fellow citizens living in actual families. The opposition to same-sex marriage, at least in so far as it is grounded in dogma, amounts to this: We know the truth, we have the power to write that truth into law, and we will use our power to stop any further development contradicting it. Applied to markets, conservatives would call it socialism.

The New Conservatives

Every year toward the end of June, gay pride time, we are treated to another round of reminiscences about the good old radical days of gay liberation, laced with resentment about how we've now betrayed some founding principles. Reading these essays is like walking into a home full of bean-bag chairs and shag carpeting. It's memorable in its way, but you don't want to live there.

In this 40th year after the riot at the Stonewall Inn, the most prominent of these nostalgists is long-time activist Peter Tatchell in Britain, who wites in The Guardian about his experiences in the Gay Liberation Front (GLF):

Our vision was a new sexual democracy, without homophobia and misogyny. Erotic shame and guilt would be banished, together with socially enforced monogamy and male and female gender roles. There would be sexual freedom and human rights for everyone - queer and straight. Our message was "innovate, don't assimilate".

GLF never called for equality. The demand was liberation. We wanted to change society, not conform to it. . . .

In the 40 years since Stonewall and GLF, there has been a massive retreat from that radical vision. Most LGBT ­people no longer question the values, laws and institutions of society. They are content to settle for equal rights within the status quo. On the age of consent, the LGBT movement accepted equality at 16, ignoring the criminalisation of younger gay and straight people. Don't the under-16s have sexual human rights too? Equality has not helped them. All they got was equal injustice.

Whereas GLF saw marriage and the family as a patriarchal prison for women, gay people and children, today the LGBT movement uncritically champions same-sex marriage and families. It has embraced traditional hetero­sexual aspirations lock stock and barrel. How ironic. While straight couples are deserting marriage, same-sexers are rushing to embrace it: witness the current legal fight in California for the right to marry. Are queers the new conservatives, the 21st-century suburbanites?

There's hardly ever been a more succinct statement of the way the gay civil rights movement has changed -- I would say matured -- over the past 40 years. Stripped of the pejoratives, Tatchell's essay accurately describes the main differences. Witness the struggle to serve in the military, to join the Boy Scouts, and most of all, to marry. This is a way of saying, Yes, many of us do accept the fundamental values, laws, and institutions of our society. Equality of rights and obligations within those institutions is ennobling, not mindless. We doubt that all innovation is good. We're not trying to abolish "gender" or monogamy. There is an appropriate age threshold for sexual consent. We think "assimilation" is just a patronizing way to describe living our lives without conforming to your romantic notions of queerness. Sexual freedom? Anybody with an apartment key has that.

And yes, we want marriage. Marriage is not a "patriarchal prison" for our partners and children. It is freedom from a queer prison of perpetual grievance and mythologized otherness. It is getting off the tiger's back of adolescence and accepting responsibilities for families and communities.

Tatchell and his generation of radical liberationists deserve our eternal gratitude for their courage and their success. Tatchell himself has been fearless in his pursuit of, whether he would say so or not, equality for gays and lesbians. The liberationists who gave us Stonewall hastened us down a path (already begun long before them) that has brought us to the edge of unprecedented respect and acceptance.

But they do not deserve our uncritical acceptance of their values or goals. We are their children but we've grown up and moved out of the house. They do not own the movement, they do not censor its messages or license its membership, and they are not gatekeepers of its future.

Welcome to co-blogger Brian Chase…

... a passionate advocate for gay civil rights, and a brilliant and accomplished lawyer who's been in the trenches of the fight. He's also very funny and an incisive analyst, as his initial post below demonstrates.

At last he's been released from the deadening clutches of the establishment!

The Folly of 2010

On November 2, 2010:

(1) A repeal of Prop 8, in some form, will be on the California ballot.

(2) About $60 million will have been raised in the effort to repeal Prop 8.

(3) The repeal will fail.

(4) The margin of loss for SSM advocates in California will be greater than the margin of loss in November 2008, probably in the neighborhood of 46% "yes" (for repeal) and 54% "no" (against repeal).

How likely is this scenario? Prediction #1 is clearly the direction in which SSM advocates in California seem headed. There is no enthusiasm among activists for waiting until 2012, much less 2014 or 2016. Moreover, although organizational leaders and strategists just four months ago seemed to be leaning against a 2010 repeal effort because it was too soon and would fail, the momentum has swung in favor of 2010. Even Equality California, more strategically conservative and cautious than most street activists, is leaning strongly towards it, reporting that a "majority" of those they've polled favored 2010 over 2012. The California Supreme Court's recent decision upholding Prop 8 seems to have galvanized the 2010 effort.

Prediction #2 is, if anything, a lowball estimate. SSM advocates raised just over $40 million between June and November 2008. It was a huge sum, but it will not be enough next time. It's a baseline. Given that everyone will expect a close vote, and given that everyone knows California will be the end of the beginning if SSM wins politically there, both sides will be even more highly motivated to donate once the initiative reaches the ballot. Without a presidential election to suck up contributions, more money will be available for social-issues campaigning. We should expect at least a 50% increase in the amount needed.

But it won't be enough, which is why prediction #3 will come true. Anti-SSM activists are fully aware of the stakes and are fully aware of how close the outcome may be. There are many more people who passionately oppose gay marriage than who passionately support it, even in California. This was crystal clear last November, when supporters of Prop 8 simply out-muscled us on the ground in every part of the state except a few neighborhoods in a few cities. There are areas where our side was completely unrepresented. I spoke to an organizer supporting Prop 8 who told me, "We didn't even see you guys out there." Some things can be done to reduce the gap, but the brute math is still there and won't have changed that dramatically by 2010. I also think we'll probably need one more loss at the polls in California before tacticians on our side make the proposal as broadly acceptable as possible -- for example, by including in the repeal substantial conscience protections for religious individuals and organizations. These aren't needed as a matter of law, but they are helpful as a matter of politics.

Moreover, prediction #4 will come true because the 52%-48% margin by which we lost in November was deceivingly close. Everything else being equal, the conditions were about as favorable for SSM supporters in California last November as they are likely to be for many years. They aren't likely to be as favorable in 2010. This is true for several reasons: First, 2008 was a presidential election year, when turnout is higher and when more mainstream, less ideologically committed, voters dominate. 2010 will be a gubernatorial election in the state, which means there will be a somewhat higher proportion of traditionally conservative, committed, and disciplined voters. Second, 2008 was a bad year for Republicans. 2010 will likely be a better year in general for Republicans since mid-term elections are usually good for the party out of power. Sorry to say it, but good years for Republicans are usually bad years for gay rights. Third, gay marriage was the status quo in 2008, however briefly, and meant that gay couples were actually marrying. It will not be the status quo in 2010. People have a status quo bias. Fourth, the ballot language on Prop 8 reflected the status quo by indicating that it would "eliminate rights," something Americans don't like to do. In 2010, nobody will lose existing rights if voters refuse to repeal Prop 8. The ballot language may be friendly to SSM supporters in 2010, but it can't be as friendly as it was in 2008. Fifth, supporters of SSM needed a "no" vote to prevail in 2008. In 2010, they will need a "yes" vote. There is a small built-in bias (maybe 1-2%) for "no" votes. Sixth, some voters will resent being asked to vote on something they just voted on.

The kinds of voters who are affected by these factors aren't ones heavily invested in SSM, on either side. SSM doesn't hurt them, but it doesn't directly help them or anybody they know, either. They have low stakes in the outcome, but their votes count as much as those who have high stakes. They can be moved by mild nudges that shouldn't matter in principle, like resentment over voting again so soon, or by an effective ad campaign. They may be only 5-8% of the electorate but everyone agrees they will make the difference.

The longer we wait for repeal, the more likely we'll win. This assumes that younger voters continue to support SSM, that older voters gradually get used to the idea, and that the oldest die-hard opponents succumb to certain actuarial realities over time. So, all else being equal, 2012 would more likely produce a victory for SSM than would 2010. And 2014 or 2016 would be even more likely, although gaming results that far out is hazardous because of political factors that have nothing to do with repealing Prop 8 (like whether Obama serves a second term and Republicans take back the White House in 2016).

What would be the harm in rolling the dice in 2010, even if 2012 is a better bet? We might still win in 2010, after all, which would be great. But what if we lose in 2010? We just put it back on the ballot in 2012, then 2014, then 2016, until we win.

The problem is that losing has consequences beyond the immediate loss. Initiatives -- from gathering the needed signatures to running an effective campaign to winning -- require a huge investment of money, people, and time. Such resources are finite. The $60 million or more that will be spent in 2010 could go to other things, like state and congressional elections or fighting a possible SSM repeal (Maine? Iowa?) or amendment ban in another state. Those volunteers and organizers could be doing other productive things with their time. And losing in 2010, especially if the margin is greater than in 2008, will be deflating. It will harm morale. It will scare off legislators elsewhere. And it will be taken (incorrectly) as a sign that the tide is beginning to turn against SSM, with numerous political consequences in the short term. Losing doesn't mean you start from scratch the next time you try. It means you start from scratch with a bigger political, psychological, and financial burden. Waiting until 2012 would be better, in this sense, than losing in 2010 and trying again in 2012.

The only thing that can stop the mad dash to 2010 is donors, both inside and outside California. They can refuse to fund the initiative drive, which will mean that it will fail to make the ballot. That's what I hope will happen. Supporting SSM does not mean pressing for it everywhere, at any time, by any means. It means thinking hard about the choices, the likely outcomes, and the consequences of those outcomes.

But if a repeal makes it to the ballot in 2010, we'll have no choice but to join the fight.