8's Parts: Courts should look to sum, not some
Although Judge Vaughn Walker's federal court decision on Proposition 8 has brought the same-sex marriage conversation into a more prominent light than it's seen in years, there is an ancillary component that's being overlooked. A particularly interesting side argument that, while easy to write off as a distraction, actually tells us quite a bit about the anti-LGBT movement and the tactical way its midwives engage in the so-called "culture wars."
On one side we have the Alliance Defense Fund, the Christian conservative legal outfit that headed up the Prop 8 proponents' defense in Judge Walker's court. In the days since Walker's August 4 decision in favor of equality, the ADF and its defenders have spent considerable time criticizing "activist judges" and the cherry-picked quotes from the 136-page ruling that they find most conveniently spinnable. For Team ADF, there's been little public self reflection, and even fewer questions asking why their case was so shockingly lacking that even Judge Walker expressed concern over the lack of presented evidence.
But where ADF has failed to ask these tough questions, the even more conservative attorneys at the Liberty Counsel have more than picked up the slack. In press releases both on the day of the ruling and in the weeks since, the Liberty lawyers, who had requested to provide additional defense in the federal trial, have pointedly criticized the ADF for shutting them out of the process. And it's not only the personal shut out that's earned the LC's ire. Speaking to Lifesite News on Aug. 17, Liberty Counsel chairman Mat Staver also criticized the ADF's refusal to "focus or even address the consequences of homosexualityand homosexual marriage," and said that a case under his leadership "would have called a number of witnesses who have high credentials in the area of homosexuality and homosexual behavior, marriage, and reparative therapy."
It's patently obvious why the ADF lawyers and the Prop 8 strategists shied away from pushing overheated rhetoric and "ex-gay" therapy into the court of law. To quote pro-equality litigator David Boies from his 8/8/10 appearance on CBS's "Face The Nation": "It's easy to sit around and debate and throw around opinions, appeal to people's fear and prejudice, cite studies that either don't exist or don't say what they say you do. In a court of law you’ve got to come in and you’ve got to support those opinions, you’ve got to stand up under oath and cross-examination." Obviously the incendiary charges that the Liberty Counsel planned to use would've been destroyed by Boise and fellow Prop 8 opponent Ted Olson in front of Judge Walker. Or perhaps even more cringe-inducing for the side of anti-LGBT bias: The true nature of the anti-gay movement's teachings and rhetoric would have been put on display for the public at large.
But for me as someone who observes the so-called "culture wars," I have to say that I personally side with the overheated Liberty Counsel on this matter. This on-going marriage conversation deals with one group that's fighting for what they see as a constitutional right, pressing against the entire range of presented reasons for why that civil equality remains out of reach. It's not just hesitation that keeps same-sex marriage at bay: Within the anti- movement, there's also undeniable detestation (even if its voicers claim to direct it more towards the "sin" than towards the "sinner"). And while this fire branding is more enraging on a purely emotional level, one has to respect its carriers for having the gumption to stand on their convictions. Because let's get real: It's not like the organized players who use "nicer" anti-gay tones are typically any less convinced about homosexuality's eternal ticket.
This war between letting it all hang out and playing "nice" is the same thing we pro-equality activists see in every election where LGBT rights are put before a public vote. All of a sudden the usual "pro-family" voices from whatever state is being contended are either swept under the rug or carefully schooled in what to say and do. Up from nowhere, a new team of more politically savvy, more "mainstream"-sounding figures take the lead. The ads become softer. The rhetoric less aggressive. The tone completely changed. For a case study of this, see Michael Heath, who was Maine's most prominent and proud ant-LGBT voice for a decade or more before marriage was put before voters, but who was entirely shut out of the state's 2009 Question One campaign. In February of '09, Heath was feted at a Focus on the Family-affiliated banquet; by November, those same people who appeared at the banquet would sooner buy a gay wedding card than associate with Mike in public. (*After I noticed and highlighted this forced burial of Heath and his uncompromisingly sharp tongue, a few from the socially conservative movement confirmed to me that my insight on this matter was spot-on.)
"Culture war" observers witness similarly double-faceted engagement from anti-LGBT leaders who perform on the punditry circuit. In more than one church in the past year, Family Research Council president Tony Perkins, a regular fixture on the "from the right" TV panelist circuit, has boldly stated that his pro-LGBT adversaries are "being held captive by the enemy." But one would never hear Tony voice an enemy possession stance when appearing on Anderson Cooper or similar mainstream cable news show. Because there's one message being delivered to the anti-LGBT base on whom these groups rely for funding, rally attendance, etc., and a whole other set of talking points geared towards the general public 9and especially that much sought-after "moveable middle).
Which brings us back to the case of Liberty v. Alliance. The latter group, along with its affiliated attorneys, had embarrassingly little to show in court, in large part because they shut out a massive portion of the anti-gay rights movement. Is that fair to the social conservatives? Doesn't the court and the public deserve to hear about the forces that literally want to "change" gays into scientifically discredited "ex-gays"? And since there is such a decided strategy from the Prop 8 proponents to silence their most determined potential troops, isn't that battle plan itself a crucial component of the associated referendum? Don't both the shunned gays and the shunned anti-gays deserve to know why Schubert Flint Public Affairs gets to be the gatekeeper of which rights-depriving arguments hit the public ears?
The answer to all of those questions is a resounding YES. I, for one, hope the Liberty Counsel refuses to shut up!
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