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Banking on en banc? To me, Brian Brown sounds timid

by Jeremy Hooper

Brian Brown puts up a supportive front. But I don't know -- he sounds timid here, which is a rare position for the reliably-defiant National Organization for Marriage president:

“Even though we were looking forward to the US Supreme Court finally getting this case right away -- because we fully expect them to uphold Proposition 8 and traditional marriage -- we understand the desire of the proponents of Prop 8 to have the grievous error made by the panel reversed at the soonest possible moment,” said Brian Brown. “We wouldn’t normally have a lot of confidence in the Ninth Circuit, but the decision to invalidate Prop 8 is so outlandish that perhaps even the remaining justices of the Ninth Circuit itself won’t be able to stomach it. We can support this decision to seek en banc review.”
[NOM Blog]

I think that Brian, as he gears up (read: $$$) towards a SCOTUS fight and possible aftermath campaign, is scared of yet another level of loss. Most average Americans don't know their panels from their "en banc" from their holes in the ground. What the average American hears on days when Prop 8 rulings come down begins and ends at the win or loss. The legal complexities and/or nuance, while important to those of us who follow this stuff, tends to get lost at the water cooler. At the water cooler, the question is more along the lines of "Did you hear a court struck down Prop 8?" and less concerned about the finer distinctions/considerations.

So why do I think that this, the chance of another lower court loss, matters to NOM? Well, because NOM is extremely dependent on public perception. As long as the organization can convince just enough people that they have momentum, NOM can pretty much stay in business. The big, secret donors will see to that. But the most major wrench, in terms of this momentum? These big court losses. Unlike anything else in the marriage movement, these court losses get mainstream play. When these cases come down, they reliably find their way into editorials, casual mentions on even non-political radio, "Weekend Update" jokes, and various other, far-reaching forums. Most importantly: These cases (and largely, recently -- these wins) make their way into the American conversation, doing more than just about anything to drive home the idea that marriage equality is pretty darn inevitable under the law, regardless of anyone's personal opposition.

So assume the judges do take up an en banc rehearing. Assume the appeal goes our way yet again (something NOM likely assumes). Assume we on the right side of history get to capture the news cycle and the overall zeitgeist yet again. That might not necessarily put us in any better or worse place, legally, in terms of an eventual Supreme Court case, but the idea of a third loss in the run-up to SCOTUS will do quite a bit in terms of the average citizen's consciousness. That, the rapidly changing public perception and the shrinking capital attached to it, is what surely keeps NOM awake at night.

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