New Report Shows Courts Aren't the Only Way To Marriage Equality

It’s been a huge week for supporters of marriage equality, in the wake of Judge Vaughn Walker’s ruling in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional.  But there are multiple roads to marriage equality in California and around the nation, and they don’t all involve courts.  A new report, published this week, illuminates the path to winning marriage equality at the ballot box.

While Judge Walker’s words are an eloquent and stirring defense of the right to marriage for all, the ultimate fate of Prop 8 isn’t in his hands; the case still needs to go through the long, arduous appellate court process before reaching the Supreme Court, which will take a number of years.  Even there, it’s all but certain that four justices (Scalia, Thomas, Roberts, and Alito) will vote against marriage equality.  With the current makeup of the Court, it’ll come down to the Court’s one swing vote: Justice Anthony Kennedy.  This is a gamble, to say the least.

We all hope for the best from the courts during the next few years of litigation.  In the meantime, I advise supporters of equality to closely read a new study from the LGBT Mentoring Project.  This report, written by longtime LGBT activist David Fleischer, not only analyzes the reasons why Proposition 8 passed in 2008, but also reveals how we can learn from our defeat to win future ballot initiatives.  (Full disclosure: I am an employee of Renna Communications, a firm handling public relations for the Mentoring Project.)

Here are just a few of the report’s findings:

• It was all about the kids. Remember the ad that featured a mother reacting in horror as her daughter tells her that “I learned I can marry a princess?”  Yes on 8’s most effective ads targeted parents and raised fears that children would be taught about homosexuality and (one can infer) gay sex in school.  Parents ran away from marriage equality in droves – about 500,000 of them, according to the Report.
• Messaging matters. While the Yes on 8 campaign found an attack that worked and aimed it straight at the guts of California parents, the No on 8 campaign never managed to find a similarly clear, compelling message.    In fact, the campaign was roiled by dissent over how to respond to the Yes on 8 attacks, and ended up wasting sixteen costly days before responding directly to the “princess” ad.  The response ad ended up winning back a respectable minority of parents, though not enough to swing the outcome of the vote.
• Racial minorities aren’t to blame. While majorities of African-Americans did vote for Proposition 8, they didn’t provide the margin of victory.  That came from the parents who swung in favor of Prop 8.  Moreover, minority support for Prop 8 may also prove to be vulnerable with a stronger outreach effort from our side.
• We face an uphill climb.  This finding may be the bitterest pill for marriage equality supporters to swallow, but it should be acknowledged: Many voters were confused by the counterintuitive wording on the ballot, which asked them to vote “no” for same-sex marriage, and “yes” against it.  The Report finds that this wrong-way voting disproportionately benefited our side; had all voters cast their ballots based purely on intent, Prop 8 would have won by a million votes – over 400,000 greater than the official count.
• We can still win. As the report’s recommendations note, “[t]here is no secret recipe that we can just follow to win.”  But it does offer a series of general recommendations, including: working to persuade voters in between campaigns; and preparing for “kids” attacks.  What’s more, the site actually features videos of conversations with skeptical voters, showing how they can be persuaded to support marriage rights even in the face of attacks like the “Princess” ad.

We face a long and difficult fight ahead of us no matter how we pursue the cause of marriage equality.  We may hope for a resounding Loving v. Virginia equivalent that establishes same-sex marriage as a constitutional right.  But we can’t stake the future of marriage equality solely on how a single Justice might vote three or four years (or more) from now.  We must keep fighting outside the courts, working to win over voters, and digging in for the long haul.

Photo credit: A New York City Prop 8 protestor, by David Shankbone