California Quake

The court decision was a setback, but it will make us focus on a better strategy.

By Steve Charing

As recently as 10 years ago, few thought that "gay marriage" would ever be at the forefront of a national dialogue.

At the time, the LGBT community and allies were reeling from the failed effort to allow openly gay and lesbians to serve in the Armed Forces. We were trying to nudge a bill through Congress that would provide anti-discrimination protections in the workplace for gays and lesbians. And we were attempting to enact legislation at the state and local levels to protect the gay and lesbian community from discrimination in employment, housing and public accommodations.

That was our agenda a decade ago.

It all changed on May 17, 2004, when the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Department of Public Health that the state constitution couldn’t limit marriage to heterosexual couples. The issue of same-sex marriage was all-of-a-sudden thrust near the top of the national debate when conservative religious groups and others went ballistic.

Ballot initiatives in 11 states to ban gay marriage popped up like spring dandelions. All passed. Many believe that the controversy generated enough evangelical voters in Ohio to tip the election to George W. Bush in 2004.

Accordingly, gay activists were unprepared for this war compared to the more organized and better funded religious right. Our side depended largely—but not entirely—on having the courts remedy what has been seen as violation of the equal protection clause in many of the states’ constitutions as well as the 14th Amendment of the U.S. Constitution.

Fast-forward to the recent California Supreme Court ruling by a 6-1 vote that disheartened the LGBT community and supporters by upholding the iniquitous Proposition 8 outcome that resulted from the November 2008 ballot measure. Although the approximate 18,000 couples who married prior to the election result were permitted to retain their status, the disappointing, but not necessarily surprising court decision, prompted an angry backlash from marriage equality advocates.

The ruling highlighted the fact that the judicial system, while helpful in many cases, cannot totally be counted on to make same-sex marriage a reality. This energy generated from the decision will be channeled in California to appeal to the voters again and essentially reverse the outcome of Prop 8.

That’s the correct strategy.

Hopefully with better leadership of this effort it will be successful. A new coalition needs to come in and work with clergy of all religions to alleviate concerns and to emphasize that civil marriage is what is being sought—not religious blessings.

These leaders should reach out more aggressively to the African-American community to highlight the similarities between the civil rights movement and what gays and lesbians are seeking.

And why not take advantage of the many PFLAG chapters in California to allow representatives speak to senior citizen groups and educate them on the true meaning of family values? More than any other demographic, seniors accounted for the largest percentage of those who supported Prop. 8.

It’s far more expedient to file a suit in a court and hope that the judge or panel of judges issues a favorable decision. The judicial system is supposed to be our safety net. But what if that fails, then what?

We need to go back to the fundamental process of building grass-root support and having dialogues with key groups that are persuadable. Let’s take that approach, even if it requires a few years, and allow the issue to be decided by the legislatures, if not the voters, per se. Elected officials, more often than not, follow the will of the people.

The work is made easier when more and more gay folks come out. You would be surprised as to how many people support our efforts who would ordinarily not side with us. Steve Schmidt, the chief campaign strategist for none other than John McCain, comes to mind. His sister is a lesbian.

This would be a violation of the aphorism, don’t let the rights of a minority be put up for a popular vote. But that may be the best route to take in the long run. In California, for example, we cannot change the minds of the justices, but we can change the voters’ minds if an effective strategy is crafted and executed. And that could reverse the results; after all, we only lost by 4.5 points back in November.

To underscore this strategy, a bunch of lgbt advocacy groups including the ACLU are urging others to refrain from filing federal lawsuits because as they see it, the Supreme Court does not have the make-up at this time to rule favorably on a same-sex marriage case.

There are others, however, who believe that going to court is our best course of action. Lawyers Theodore Olson and David Boies—adversaries in the Bush v. Gore case following the bungled 2000 Florida vote—are leading the way.

A blogger on LGBT Rainbow Links FOCUS.com supports this approach by writing, "Either you go full steam ahead in war or just sit on the sidelines and lick your wounds. That's the trouble with ‘our society’ when it comes to the ‘LGBT leaders’ and time to put up or shut up, they fall to the wayside like a bunch of weak little mice."

But he adds, "You want gay marriage, you want equal rights, then be prepared to get down in the trenches and get dirty. Take the battle where it should have gone before."

And that battle is taking it to the people, which is the best strategy. File the suits in the courts anyway, but win the people over, too.