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The San Francisco Marriage Case, Part One: The Possible Outcomes and the Process

By Matt Coles, Director, ACLU Center for Equality at 2:26pm

(Originally posted on Huffington Post.)

Several people have asked me questions recently about the marriage case in federal court in San Francisco (the case brought by Ted Olson and David Boies). In this first post, I'll cover possible outcomes,…

Supreme Court Bans Videotaping to Protect Prop. 8 Supporters

By Matt Coles, Director, ACLU Center for Equality at 3:16pm

The Supreme Court just issued one of its most disturbing decisions since Bush v. Gore in Perry v. Schwarzenegger, the federal challenge to California’s Prop. 8. Ironically, the plaintiffs' lawyers in Perry, Ted Olson and David Boies, represented…

The Value of a Little History: The Myth of a Big Federal Fix

By Matt Coles, Director, ACLU Center for Equality at 4:55pm

(Originally posted at Pam's House Blend)

It's all over the blogs, the LGBT press, at LGBT gatherings: the way to get equality for LGBT people is with one sweeping federal law. There are two main arguments: 1) history — this is the way most minorities in America got equality; and 2) political — this is quickest way to get full protection for LGBT people. The problem is that the history is dead wrong and the political prediction ignores some fundamental truths about politics in America today, and how change gets made.

As I explain in an essay in this year’s ACLU report on LGBT rights, there are eight great federal civil rights laws on race, not one. The five modern laws came not all at once, but over 15 years (you can read the whole essay here).

The movement for legal equality didn’t start at the federal level, and didn’t end there either. Twenty-four states had laws banning race discrimination on the job before the 1964 civil rights act. On some issues — like discrimination in public accommodations and housing — states have stronger laws.

Change has typically started in progressive states, and while continuing to more moderate states, moved forward in pieces at the federal level. That doesn’t mean this is the only way to do it. But the political climate in America today, the nature of the issues and our ultimate goal all tell us that a tandem state/federal strategy is the way to go.

While strong majorities of Americans support some civil rights for LGBT people, that doesn’t translate into support in Congress or the federal courts. That’s partly a reflection of conservative dominance of federal politics for 20 of the last 28 years and partly an illustration of a political truth: a motivated minority will beat an apathetic majority every time. We may have more supporters than our opponents, but they have far more who are willing to vote and give money on the issue.

Mormons and Knights and Understanding Proposition 8

By Matt Coles, Director, ACLU Center for Equality at 5:01pm

(Originally posted on the Huffington Post.)

For their support of Proposition 8, the Mormon Church and the Knights of Columbus have been subjected to harsh criticism. They insist the criticism is unfair. All they did, they say, was exercise their democratic right to cast their vote on whether same-sex couples should be able to marry.

That response suggests the Mormons and the Knights don't grasp what Proposition 8 did. They speak as though Prop 8 were a simple vote on whether to support or oppose marriage for same-sex couples. But Proposition 8 didn't pass a law about marriage or repeal one; it changed the state constitution to say that a right available to everyone else would not be available to same-sex couples.

The difference between passing a law and changing the constitution is no technicality. If majority rule is the first premise of the American system, the second premise is that the rights of a minority can't be taken away by majority rule.

It was to make sure that minority rights didn't depend on the forbearance of the majority that we added a Bill of Rights to the federal constitution. And it was to make sure that the promises contained in the Bill of Rights were real that we early accepted the idea that while it was for Congress to decide what laws to pass, it would be for the Courts to decide if those laws were fair and equal.

Iowa and Vermont: The Politics of It

By Matt Coles, Director, ACLU Center for Equality at 1:32pm

Some week. The Vermont legislature voted to let same-sex couples marry, and the Iowa Supreme Court decided that it is unconstitutional not to let same-sex couples marry. Together, these two events are a much needed shot in the arm for marriage.

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Iowans celebrate Supreme Court marriage decision.
(Photo: Alan Light, Creative Commons)

Iowa is the first win in a flat state without an ocean view. And the decision was unanimous. Vermont is the first time a state legislature (as opposed to a court) has opened marriage, and it did it by a stunning veto override.

Iowa and Vermont don’t erase the damage from losing Proposition 8 in California. They don’t have either the cultural or economic influence that the Golden State has. Still, there’s nothing like winning big to put the wind back in your sails.

Where the marriage movement heads now, though, is complicated. Iowa and Vermont will not be the start of same-sex marriage all over the country because that simply isn’t possible.

Winning marriage in four states has been politically expensive; in getting it, we also got amendments to state constitutions that block marriage in 29 states. There are just two ways to get marriage now in those 29 states. First, you could go to the voters to get the amendments repealed. That’s a very costly process, and one not likely to work in many of the states with amendments (like Alabama and Mississippi).

The Legal Importance of the Iowa Marriage Decision

By Matt Coles, Director, ACLU Center for Equality at 1:08pm

(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.

God Hates Figs

By Matt Coles, Director, ACLU Center for Equality at 2:14pm

Leave it to a bunch of students at the University of Chicago to remind us how best to deal with our craziest opponents. It's not to scream at them, not to shout, not to cry at their cruelty, not even to engage. It's to show them up for just how crazy…

Prop 8: Let’s Not Make the Same Mistake Next Time

By Matt Coles, Director, ACLU Center for Equality at 12:51pm

(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.

The Prop. 8 Case: You Might Not Be Gay, But You Might Be Next

By Matt Coles, Director, ACLU Center for Equality at 4:52pm

(Originally posted on Daily Kos.)

On November 19, the California Supreme Court agreed to hear a lawsuit that we at the ACLU, the National Center for Lesbian Rights, Lambda Legal, and Equality California filed the day after the election,…

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