American Civil Liberties Union

(Originally posted on Huffington Post.)

The Iowa Supreme Court decision striking down the state's exclusion of same-sex couples from marriage is the third from a state high court to treat government discrimination against gay people generally as a serious constitutional problem (the other two are the California and Connecticut marriage cases). All three courts say that a long history of discrimination driven by prejudice should make courts suspicious anytime the government singles gay people out. While there are some differences in details, the three decisions in essence say that if the government claims that gay people are truly different (and therefore should be treated differently), it has to back the claim with proof, not speculation.

The demand for proof is a crucial. The argument that is most often used against us in marriage cases is that children do best with a mother and a father, and that marriage is set up to promote heterosexual parenting. For quite a few years now, there has been solid scientific evidence that sexual orientation has nothing to do with the ability to be a good parent. That's why we have support from all of the nation's major child welfare organizations.

But as long as the courts were willing to let discrimination stand if the justification for it was "conceivably" logical in the abstract, it was tough to win the parenting argument. But when proof is required — as the Arkansas case on foster parenting in 2006 showed — we are in much better shape.

These three state high court rulings are not limited to marriage; they apply to any form of government discrimination. So they should be a help in cases involving schools, jobs and most particularly, cases about adoption, foster care and parenting.

(Originally posted on Huffington Post.)

After losing an election, it’s important to look back and figure out why. That’s the only way to make sure that you don’t keep making the same mistakes.

There has been a lot of discussion about what the No On 8 campaign did, and whether it was right or wrong. Unfortunately, there hasn’t been nearly enough focus on what is likely the single most important factor in our loss: that we needed to get the votes of people deeply conflicted about marriage to win. As I’ll explain, we’ll always be vulnerable in an election where we need conflicted voters to win.

If we have to go back to the voters—and we will have to do that, if not in California, in other states that have passed constitutional amendments—we need to make sure we have more committed support before we begin an election campaign. The good news is, we know how to do that, and we have the capacity to do it. The catch is that this isn’t something we can push off onto campaign managers and media experts. All of us—gay people and our allies—are going to have to talk to our friends and family. If we don’t, we could run the best campaigns imaginable and still lose.

Conflicted Voters: The Reason We Lost

The polls and other research show that when the campaign on Prop 8 began in earnest, around Labor Day, voters in California fell roughly into three groups: 1) those who supported marriage for same-sex couples (about 40 percent); 2) those who opposed marriage for same-sex couples (also about 40 percent); and 3) voters who were seriously conflicted (about 15 to 20 percent).

That group of “conflicted” voters was mostly made up of people deeply uncomfortable with marriage for gay couples, but who were also uncomfortable with the idea of taking something positive away from other people.

On Labor Day, a large majority of the conflicted voters were telling pollsters that they planned to vote against Proposition 8. That likely reflected the fact that pro-marriage forces had been effectively defining the debate. Up to that point, almost all of the public conversation about marriage had been positive, from the first gay wedding of Phyllis Lyon and Del Martin, who’d been together over 50 years, through countless stories in smaller media about local couples tying the knot.

Gay marriage was a “feel good” story and, to use today’s jargon, that “feel good” story set the frame of the public conversation from May to September. Most conflicted voters seemed to think it would be small and mean to take marriage away. Even if they didn’t support gay marriage, they were beginning to think they could live with it.

I'm writing to tell you about a very important parenting case that is now in the Court of Appeals in Tennessee.  Here's the story.

Angel Chandler and Joseph Baker divorced ten years ago.  They had two children, a daughter, now 13 and a son, now 15.  They had joint custody and visitation with both children.  Ms. Chandler began seeing the woman who became her partner nine years ago, and Mr. Baker married the woman who is now his wife in 2003.

We won the Florida adoption case yesterday. A Miami judge ruled that the ban on adoption by gay people was unconstitutional. And I got two new heroes out of the case.

The first hero is Cindy Lederman. She’s the judge who finally had the guts to hear the evidence on gay people as parents. I wrote earlier this week about the evidence we gave her, and how it showed that sexual orientation has no connection to parenting ability. Judge Lederman also had the insight to understand what that expert evidence meant, and its legal significance. Here’s how she put it:

As a result, based on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.

And then she did what followed inevitably from that finding: She declared the law unconstitutional and allowed our client to adopt his sons. (You can read her opinion here.)