IGF CultureWatch

Worth reading-and pondering: the two political consultants who steered anti-gay-marriage Proposition 8 to victory in California, Frank Schubert and Jeff Flint, explain candidly how they did it. Some points of note:

1) The "yes" side won because it set the terms of the argument. By focusing on education and gay marriage supporters' (alleged) arrogance, they defined the battle as being about gay intolerance (ramming SSM down schools' and voters' throats) instead of about tolerance of gays. The anti-8 side never effectively responded. Instead it denounced the "yes" ads as unfair.

2) A decisive moment toward the end-"the break of the election"-was an own-goal that the pro-gay side scored against itself. "In what may prove to be the most ill-considered publicity stunt ever mounted in an initiative campaign, a public school in San Francisco took a class of first graders to City Hall to witness the wedding of their lesbian teacher. And they brought along the media." Yes-as Schubert does not say-the field trip was egregiously misrepresented by the pro-8 forces. But it was an own-goal nonetheless.

3) The pro-8 forces were so sure that the antis' effort to portray opponents of same-sex marriage as bigots and discriminators would backfire that they didn't even bother to respond. They were right.

I've been arguing for some time that we will not win marriage by dismissing opponents as haters and contrary arguments as proof of bigotry. We must make a positive case and respond frankly and respectfully to opponents' qualms. We must be prepared for the obvious attacks, instead of believing that justice will prevail. Above all, we must not talk to the voters as if we were entitled to their support ("Don't put rights up to a vote," etc., etc.). If you don't believe me...ask Frank Schubert.

I wonder how many viewers-especially among those who voted to ban gay marriage-agree with novelist and Pajamas Media columnist Andrew Klavan's reaction to Sean Penn's best actor acceptance speech for Milk:

Let's say you believe that gay marriage should be legalized and you want to convince those among your fellow Americans who have reservations. It seems to me the wisest, most effective course would be to assume the opposition to be people of good will with real concerns and to argue your position before them forcefully but reasonably. Now let's say you're a narcissistic windbag who wants to parade yourself in front of people who agree with you as an icon of crusading righteousness when you're really just a violent lowlife who idolizes dictators and tyrants while attacking your own country. Ah, then you would be Sean Penn. Winning an admittedly deserved Oscar for an excellent performance in Milk, Penn used his time at the podium to declare everyone who doesn't support his cause hateful and shameful, a disgrace to their grandchildren. Yeah, yeah, yeah. Leftists are always talking about diversity but if you disagree with them-you're a monster. What a schmuck!

Klavan's reaction is over the top, but I think Penn's plea for voters to reconsider their opposition to Prop 8 would have been more effective without comingling it with his adoration for Obama. At some point, supporters of gay equality are going to have to realize that they have to win over Americans beyond the liberal-left Democratic party (although, admittedly, winning them over would be a start).

Separately, Wednesday's New York Times includes a range of letters regarding the Rauch/Blakenhorn op-ed calling for a compromise on marriage.

If you have a taste for how amoral political campaigns can be, you have to read Frank Schubert and Jeff Flint's Passing Prop 8. They are the political consultants who ran the Yes on 8 campaign.

The article is, of course, very self-serving, but don't hold that against it, since that's the ocean these characters swim in -- if you don't bang your own drum in the political consulting world, you can't complain that no one heard you. It's David Mamet's world, they just populate it.

What is most poignant, though, is that you will not find any moral judgment in the article -- for or against same-sex marriage. Every victory, every setback described is tactical. It's a military debriefing, dissecting how a battle was won.

For those of us to whom the very heart of same-sex marriage is moral (and I include people on the right as well), it is good, I think, to step back and see how cold and empty the world looks to people who lack that capacity.

It's also good to see them confirm that 40% of their funding came from Mormons.

In responding to Jon Rauch and David Blankenhorn's proposal on DOMA, Maggie Gallagher makes two assertions about compromise that deserve discussion. First, she says that gay marriage proponents are successful enough that they don't really need to compromise ("I think the pro-marriage side is going to have to demonstrate an ongoing capacity to organize far more effectively before the gay-marriage juggernaut is going to be looking for a way to compromise."), and then says that it doesn't matter because gay rights groups don't show a willingness to compromise, anyway, so Congress and the President won't force one on them.

The first statement is no more than political rhetoric. A gay marriage "juggernaut?" Is there some wave of gay marriage laws getting passed that I've missed? I've seen political figures talk down their own success before, but this sets some kind of new standard for tactical overpraise of the opposition.

The second assertion, though, is even more canny. It's the old unilateral disarmament argument, fashionably retooled. The other side has to go first, and since I know they won't, I'll be damned if I'll give up my nukes and then live at their mercy.

It is exactly this mindset the proposal is designed to address. No one here actually has anything nuclear. The right continually says that they are worried about gay marriage's potential infringement on religious liberty. In Hawaii this week, the thousands of people demonstrating against a civil unions bill were virtually all, proudly religious believers worried about having to "force churches to lend out their facilities," and "open up a Pandora's Box of legal suits." The compromise takes that concern seriously, and says that no state civil union bill can get federal recognition unless it guarantees that churches will not have to recognize the relationships.

But it also takes seriously the concerns of same-sex couples, who, in most states, have no rights as couples at all. As is true of most compromises, it involves both sides to give a little. It provides that if gays can get a state to recognize their relationships - and it does not require any state to do that - then the federal government - which includes elected representatives from that state whose citizens are affected - will follow suit. As just one example of the problems the status quo causes, same-sex married couples in Massachusetts must now file two sets of income tax returns: one for Massachusetts, as a married couple, and one different set for the federal government, which requires them to identify themselves as unrelated individuals because DOMA requires the federal government to blind itself to any lawful same-sex relationships.

More important even than this, the compromise addresses voters who support neither gay marriage nor a total gay marriage ban. Unlike the absolutists on either end of the spectrum, there are a large number of Americans who understand both the concerns of religious believers and same-sex couples, and think both should be given some legal effect. It is safe to say - and Rauch and Blankenhorn do - that this compromise will not make any extremists happy. But that's a truism about compromise - it is, in fact, the definition of what a compromise is.

I cannot speak for any gay rights organization, and I would expect that Maggie is right they will oppose this compromise as she does. But compromises aren't for the ideologues, they're for the rest of us. The test of a compromise is whether it appeals to the middle. And, ultimately, that is how we'll know whether this one succeeds or not.

IGF's Jonathan Rauch has joined the anti-gay marriage proponent David Blankenhorn in the New York Times to come up with a fascinating compromise on DOMA: The federal government would recognize same-sex relationships contracted in those states which approve of them (whether as marriage, civil unions or domestic partnerships, though the federal government would call them all "civil unions"), but only if the recognizing state has "robust religious conscience exemptions" that would assure religious believers who oppose homosexuality their church would not have to recognize or honor the unions.

The compromise tests the veracity of the claim that religious believers worry civil recognition of same-sex relationships will invade their belief system through the enforcement of civil rights laws which require gays to be treated equally. The right has been able to scare up a few anecdotes about this misuse of civil rights laws: a wedding photographer forced to photograph a lesbian wedding; a same-sex couple who wanted to take advantage of a church-owned gazebo, which the church offered for use to the public; and churned them into a froth of paranoia about governmental intrusion into religion.

I'm with Jon in offering this proposal up publicly. I am happy to let the right know that we are dedicated to stopping this cascade of anecdotes. If they want additional assurance that the first amendment's separation of church and state means what it says, I will be on the front lines to add a statutory "and we really mean it" clause.

But I don't think anyone will take us up on this offer, since I don't think this is really their worry. It is not the first amendment they are concerned with, it is the fourteenth. It is equality that is the problem for them. Any government recognition at all of same-sex couples is more equality than they can bear.

The key, I think, can be found in this statement from the proposal: "Our national conversation on this issue will be significantly less contentious if religious groups can be confident that they will not be forced to support or facilitate gay marriage." What makes Jon and David think that religious groups want to have a "less contentious" national debate? It is heated controversy they crave and thrive on.

I am in complete agreement with this proposal, and think anyone who is participating in this debate in good faith could support it. That, I am afraid, is why I'm so doubtful about its success.

The Sunday New York Times brings a new op-ed by Jonathan Rauch, writing in collaboration with same-sex marriage opponent David Blankenhorn of the Institute for American Values. In A Reconciliation on Gay Marriage they write:

We take very different positions on gay marriage. We have had heated debates on the subject. Nonetheless, we agree that the time is ripe for a deal that could give each side what it most needs in the short run, while moving the debate onto a healthier, calmer track in the years ahead.

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

More. Dale Carpenter responds:

My initial and very tentative reaction, as a same-sex marriage supporter, is that the Blankenhorn-Rauch compromise probably gives little away since SSM was never really a threat to religious liberty anyway. As a practical matter, gay families gain a lot in very important federal benefits in exchange for what appears to be barring lawsuits that either weren't -- or shouldn't -- be available. The devil is in the details -- what exactly do "robust religious-conscience exceptions" cover? -- but the op-ed starts a conversation about federal legislation that might be politically achievable in the near future.

The New Mexico legislature is set to vote on a domestic partnership bill. As the El Paso Times reports:

The measure allows for domestic partnerships for unmarried couples, including gay couples. ... Supporters say the legislation will provide unmarried couples - regardless of gender - with [some] protections and legal responsibilities given to marriage couples, including rights involving insurance coverage, child support, inheritance and medical decision-making.

This would be a good mid-step advancement for same-sex couples. But why don't opposite-sex couples just get married? And since they can get married, why is it in the common interest to offer them state-provided benefits for "marriage lite"?

As a commenter to my post last week (on French straights abandoning marriage for easily dissolvable civil solidarity pacts) reminds us, Jonathan Rauch summed up the situation nicely in his book Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America:

If marriage's self-styled defenders continue along the ABM [anything but marriage] path toward making wedlock just one of many 'partnership choices' (and not necessarily the most attractive), they will look back one day and wonder what they could possibly have been thinking when they undermined marriage in order to save it from homosexuals.

Many heterosexuals argue that they want lesbians and gay men to be treated fairly, even equally in the society, and at the very least to be tolerated - with the proviso that they must also be tolerant of others.

But what does that fairness or equality or tolerance look like in law?

Equality Utah decided to find out. They offered a package of five bills, ranging from health care coverage for partners in same sex relationships to laws prohibiting discrimination in employment and housing to one setting out the simple ability of same sex couples to inherit one another's property.

All of them failed in the legislature.

In doing this, Utah has become the test case for good faith in the debate over gay rights. What legal rights will the vast heterosexual majority pass that will assure lesbians and gay men are treated fairly, equally or with tolerance?

Many legal rights have nothing to do with a person's sexual orientation, so of course they apply equally to heterosexuals and homosexuals: the right to own property; the right to apply for a driver's license and, if obtained, use the public highways; the right to a lawyer when accused of a crime. . .

But the test is not whether homosexuals are citizens - virtually no one believes they are not. The test is how the law treats them in contexts where sexual orientation matters. Stated another way, many times the law presumes citizens are heterosexual, and has been designed to account for this fact. Given that the vast majority of citizens are heterosexual, and that in the past homosexuality was at best a personal vice not to be publicly acknowledged, and at worst a crime for which imprisonment could be and was imposed, it makes sense that the civil law would not, historically, have taken homosexuality into account.

Today, homosexuality cannot itself, be made criminal, putting it, finally, on the same legal footing as heterosexuality has always been. But that is not yet true in the civil laws where heterosexuality matters and is presumed. Utah has failed the test of good faith. It has said, on the one hand, that it wants to treat homosexuals fairly and equally and with tolerance, but has left intact laws which take heterosexuality for granted and treat homosexuals quite unfairly and unequally.

Ironically, it was the constitutional principle of equal protection that was designed to guard against exactly this kind of treatment of a minority by a large majority. But in today's political discourse, constitutional equality is not only minimized (by attacks on judges who try to apply it), it is, in fact, being withdrawn by voters as a principle to rely on at all when homosexuality is involved.

That leaves lesbians and gay men to rely on the good will of the voters. Utah shows how the promises the majority makes can be empty of any meaning at all.