Courting the voters on Prop 8

August 12, 2010

Posted by David Fleischer on huffingtonpost.com:

"'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 the freedom to marry 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 marriage equality but fell short.

"First: to win, we have to put on a case. The attorneys for the freedom to marry 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.'

... "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 marriage equality may become gay or lesbian. The reason children need to be protected from the freedom to marry was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about marriage equality could make a child gay or lesbian and that parents should dread having a gay or lesbian child.'

... "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 the freedom to marry 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."

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