Voters as Victims: A Right-Wing Sleight of Hand
Analysis of the Protect Marriage Washington Supreme Court Case
SOURCE: AP/Ted S. Warren
The fight for marriage rights for gay couples will reach the United States Supreme Court in April 2010—sort of. The Court will hear arguments challenging Washington state’s Public Records Act, which was broadly approved by a voter initiative in 1972 as part of a campaign to increase transparency and openness in the state’s government and elections. The law, among other things, instructs the state to release names of people who sign petitions to place an issue up for a public vote. Protect Marriage Washington, the main plaintiff in the case, claims that publishing the names of petitioners violates privacy and is a threat to free political speech. It asserts that releasing the names of petitioners will subject the signatories to harassment, injury, or property damage, which, they claim, would deter future political participation.
The case tracks back to Referendum 71, which was approved by Washington state voters in November 2009 and confirmed a state law that grants same-sex (and older opposite-sex) domestic partners virtually all of the same rights that straight married couples receive from the state. PMW, which opposes marriage rights for gay couples and placed the referendum on the ballot hoping the state’s voters would reject the law, moved to block release of the names of people who signed a petition to put the referendum up for a vote. The United States District Court in Washington issued a restraining order on release of the names, a ruling that the state appealed. The 9th Circuit Court of Appeals reversed the lower court’s ruling and ordered the names released. The U.S. Supreme Court quickly ruled to maintain the lower court’s order preventing the release of petitioner names, and also announced that it would hear the case in April of this year.
PMW claims in a brief filed with the U.S. Supreme Court that they were motivated to bring the case forward after the Proposition 8 fight in California in 2008. California treats the names of people who donate to groups involved with ballot initiatives and referenda as public information. Incidents of violence and harassment that targeted individuals on both sides of the debate were reported during and after the Proposition 8 campaign. PMW claims that some of those individuals were targeted because their names were on the donor lists the state disclosed, which is why they are trying to keep the identities of their petitioners secret.
PMW’s case and its related claims call for an examination of how widespread instances or threats of intimidation, violence, and harassment against opponents to marriage equality are. It is especially important to put the crimes that marriage equality opponents faced into context—in this case, by comparing them to the number of hate crimes the lesbian, gay, bisexual, and transgender population faces on a regular basis. The PMW case also provides an opportunity to step back and consider why marriage equality opponents are using this diversion strategy to advance and defend their position.
Inflating the “price of Prop. 8”
The Heritage Foundation’s “The Price of Prop. 8” details the purported instances of harassment against people who are opposed to marriage equality. The report claims that “people who supported Prop. 8 have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry.”
Heritage’s report is unsettling at first glance—the author talks about the “heavy price” individuals paid for supporting Proposition 8, and that they were the victims of “naked animus.” But the author’s analysis, along with research done by Gay and Lesbian Advocates and Defenders, finds that the primary type of harassment against Proposition 8 supporters was the destruction or theft of pro-Proposition 8 signs. These acts were at worst illegal and at best disrespectful, but they did not cause any personal physical harm.
And some of the reported acts of so-called intimidation and harassment sound more like juvenile pranks or family squabbles than crimes. For example, one grocery store reported that someone filled a cart with groceries, checked out, and then said that they would not buy the groceries because the store’s owner supported Proposition 8. Another Proposition 8 supporter reported that, “people criticized her on Halloween night and ‘pointed and whispered to one another in disapproval.’” And yet another said that they had an “uncomfortable phone call with gay brother and email exchange with brother’s partner afterwards.”
Another common type of harassment that Heritage documents is calls for boycotts against organizations and businesses that either donated money to fight against marriage equality or employed people who did.
Boycotts can be quite disruptive if successful, but they are a legal method for disgruntled individuals to use their collective economic strength to express their disapproval of an organization, company, or related individual. And while supporters of gay and lesbian rights have only recently begun using boycotts, the antigay movement has used boycotts as a favorite political tactic for years. These boycotts have been organized against companies that market their products to gay and lesbian consumers, add sexual orientation or gender identity to a list of nondiscrimination policies, or provide equal health benefits to employees with same-sex partners or spouses. The American Family Association has engaged in boycotts for these very reasons against Disneyland, Kraft, Procter & Gamble, Ford Motor Company, Wal-Mart, and McDonalds, among others.
Our research was not exhaustive, but we cannot find any examples of the Heritage Foundation taking AFA to task for these actions. Heritage is also oddly silently on the fact that ProtectMarriage.com, one of the lead organizations supporting Proposition 8, also threatened to boycott businesses that financially supported Equality California, the statewide organization advocating for marriage rights.
Putting the Proposition 8 violence into context
The Heritage Foundation and other organizations expressing deep concerns about the harassment against Proposition 8 supporters seem shocked that anyone would be targeted for their political beliefs, religious identity, or other personal characteristics. These organizations are either unaware or ignorant that the lesbian, gay, bisexual, and transgender community has long been the target of discrimination in housing, work, and schools, as well as verbal harassment and brutal physical violence, including murders and sexual assault. The harassment directed at Proposition 8 supporters was, relatively speaking, a short sentence in a very long book about the ways in which people have been targeted for their identities or beliefs.
In fact, based on hate crimes data, the LGBT community received much more harassment and intimidation in California during the Proposition 8 debate than any of the people opposed to marriage equality. According to the California attorney general’s official hate crimes report, hate crimes in California dropped 2 percent overall in 2008, but anti-LGBT related crimes increased by nearly 17 percent, raising recorded incidents from 132 to 154. The Los Angeles County Commission on Human Relations’s annual hate crimes report suggested that the increase in anti-LGBT hate crimes in 2008 was prompted in part by the highly charged political atmosphere surrounding Proposition 8.
Santa Clara Deputy District Attorney Jay Boyarsky also attributes the increase in hate-crimes in the Bay Area to the events surrounding Proposition 8, saying, “When it comes to the attacks against the LGBT community [in 2008] it seems that the number of…incidents is based on the increased visibility of the community because of Proposition 8. More visibility and more controversy lead to an increase in hate crimes.”
Government reports and data also note that anti-LGB (we omit the “T” here because at the time the FBI was not collecting data on hate crimes related to gender identity or expression) hate crimes are on the rise nationally. According to FBI statistics, sexual-orientation-related hate crimes have risen over the past several years—1,017 were reported in 2005, 1,195 in 2006, 1,265 in 2007, and 1,617 in 2008. This marks a 32 percent increase in sexual orientation hate crime incidents from 2007 to 2008, compared to a 21 percent overall increase in hate crimes over these two years.
In 2008, 1,150 of the hate crimes were against a person, which included five murders, six rapes, and 232 aggravated assaults. There were also 432 property crimes, including six cases of arson. And these numbers are likely much higher as not all states have historically considered attacks motivated by anti-LGBT bias to be hate crimes and therefore do not report them to the FBI. Some victims are also reluctant to reveal their sexual orientation to police, which also suppresses the overall number of recorded crimes.
The increase in hate crimes against gays and lesbians when a gay rights issue is on the ballot is not limited to California. Sexual-orientation-related hate crimes in states with marriage amendments on the ballot in 2004 saw a 47 percent increase in these crimes from the previous year. Two of the most telling examples are Ohio, which saw an increase from 32 hate crime incidents based on sexual orientation in 2003 to 57 incidents in 2004, and Michigan, which went from 41 incidents in 2003 to 73 in 2004. Avy Skolnik, a coordinator with the New York-based National Coalition of Anti-Violence Programs, noted, “Anytime there is an anti-LGBT initiative, we tend to see spikes both in the numbers and the severity of attacks. People feel this extra entitlement to act out their prejudice.”
Interestingly, marriage equality opponents have painted themselves as victims of anti-religious (specifically anti-Christian) hate crimes. The FBI recorded 75 anti-Catholic and 56 anti-Protestant hate crimes nationwide in 2008, which is equal to fewer than one religious-based hate crime for every 100,000 Christians in the country. That same year saw 16 sexual orientation hate crimes for every 100,000 LGB people in the United States.
Not only do antigay ballot measures correlate with increases in hate crimes, recent studies also show that gays and lesbians living in states that ban marriage equality have higher rates of mental health disorders. Mark Hatzenbuehler, the researcher working on these studies with the Yale Department of Psychology, concludes that, “empirical evidence” strongly suggests that, “living in states with discriminatory laws may serve as a [health] risk factor…to LGB populations.”
Right-wing red herrings
The movement to prevent relationship rights for gay couples achieved many victories during the Bush administration: 28 states passed anti-same-sex relationship laws between 2000 and 2008. But two new trends—one demographic and the other more legally substantive—are making marriage equality opponents worried about their future successes. In response, they are using a strategy to distract the public and lawmakers from core debates about marriage equality and instead focus on distorting and magnifying side issues, such as being victims of intimidation and violence.
Demographically, public opinion data show that Americans are increasingly supportive of relationship rights, include marriage equality. A recent Washington Post poll shows that more voters nationally support marriage equality than oppose it. Forty-nine percent said marriage equality should be legal, while only 46 percent said it should not be. This is a stark change from 2006, when 58 percent opposed marriage rights for gay couples. The recent poll also showed that political independents have increased their support of marriage rights by a full nine points over the past four years; 52 percent now support marriage equality and those who are strongly opposed dropped by 10 points from 2006 to 2009.
This increase in support for gay and lesbian relationship rights is obviously a bad omen for those who oppose marriage equality, especially considering the very high levels of support among the younger population. In fact, the general electorate is slowly moving toward a majority support for extending marriage to gay couples, but younger voters are already there. The recent Washington Post poll shows that more than two-thirds of voters under 35 support marriage equality, with more than 50 percent strongly supporting it. A recent poll by the Chronicle of Higher Education shows that even 32 percent of students self-described as “conservative” and 24 percent of students self-described as “far-right” support marriage for gay couples. And support for marriage is 68 percent among independent college freshman who describe themselves as being “middle-of-the-road.” This is a 16-point increase from a similar poll conducted 10 years ago.
Marriage equality opponents are also quickly realizing that their antimarriage arguments lack legal merit. During the Perry v. Schwarzenegger trial, which challenged the constitutionality of Proposition 8, Judge Vaughn R. Walker asked Charles Cooper, the chief attorney for the side representing marriage equality opponents, what the harm would be in permitting gays and lesbians to marry. Cooper failed to give any reason and simply said, “I don’t know.” Indeed, since 1996 when Judge Kevin S. C. Chang in Hawaii ruled that the “public interest … would not be adversely affected by same-sex marriages,” opponents have failed to find any legitimate legal, social, or economic reason to ban marriages for gay couples.
Other events throughout the Perry trial also indicate marriage-equality opponents’ weak arguments. David Blankenhorn, an expert witness for marriage equality opponents, said that allowing marriage for gay couples would lead to a rise in divorce and out-of-wedlock birth rates. When asked for evidence, Blankenhorn gave a telling answer about the credibility of marriage-equality opponents. He said, “I have not engaged in a scientific study were I find data and write up an article that would be published of that nature; I have read articles and had conversations with people and tried to be an informed person about it, and that really has been the extent of it.”
Legal scholars have also dismissed the arguments against marriage equality. Martha Nussbaum, a professor at the University of Chicago’s Divinity School and School of Law has said, “We have. . .seen the arguments against same-sex marriage. They do not seem impressive. We have not seen any that would supply government with a ‘compelling’ state interest, and it seems likely. . .that these arguments, motivated by animus, fail even the rational basis test.” Her arguments are further supported by legal decisions from numerous state and lower-court judges who have ruled that marriage discrimination against gay couples is illegal.
To paraphrase Evan Wolfson, the executive director of Freedom to Marry, which supports marriage rights for gay couples, there are three ways to win a legal fight: argue the law, argue the facts, or make a fuss. Marriage equality opponents are clearly being forced to choose the latter option.
Potential ramifications of the PMW case
A U.S. Supreme Court ruling in favor of PMW would have a sweeping and negative effect on the public’s ability to know the people, organizations, and corporations that are supporting proposed laws, according to amicus curiae briefs submitted by government watchdog organizations, news media associations, and 23 state attorneys general. These briefs warn that a ruling in favor of PMW would establish a Constitutional right to anonymous speech that “would undermine public records laws throughout the Country.”
PMW’s claims are so broad that a ruling in their favor would not only strike down laws related to ballot or referendum petition disclosure, but also laws that mandate disclosure of individual and corporate contributions to candidates running for public office. According to the Center for Responsive Politics, PMW’s “broadest argument, if accepted, could usher in a new dark age for our politics, where corruption could flourish undetected and voters mark ballots in ignorance.”
It could be argued that a ruling in PMW’s favor would actually help LGBT people. Given the high rates of harassment, intimidation, and violence this population faces, it might be in its members’ interest to be able to sign LGBT-rights petitions secretly without worrying that anti-LGBT people will be able to identify them. But gay rights groups argue that the larger well-being of minority populations is contingent on fair and open elections and lawmaking.
For example, access to public records is critical for minority groups to be able to fight laws that oppose their rights and support those that advance their rights. In cases where people or organizations petition a state government to place an issue on a ballot, disclosure laws allow interested parties to review petitioner names to make sure that they are legitimate and not the result of fraud. A PMW victory would make such oversight impossible.
Marriage opponents are facing two different, but related trends. First, the general public is more accepting of gay and lesbian couples and granting them access to relationship rights. Second, arguments against allowing gay couples to marry are rapidly losing credibility. These two factors are forcing marriage equality opponents to find a new strategy to slow the momentum toward full recognition of gay couples. The current strategy, which is being advanced through the Protect Marriage Washington Supreme Court case, is to falsely portray marriage equality opponents as political and religious victims whose rights and well-being are being trampled upon.
The PMW case before the United States Supreme Court should be about the need to maintain transparent and fair elections, and not about the trumped up and exaggerated charges of voter intimidation. Five leading LBGT legal organizations submitted an amicus curiae brief to the Supreme Court to dispute claims that opponents of marriage equality are being victimized. The brief details the many ballot petitions that have occurred over the past 30 years that have sought to strip gays and lesbians of basic human rights. The brief also echoes the points raised in this column—that gays and lesbians continue to suffer serious violence, harassment, and discrimination, and that this intimidation is ironically linked to the anti-LGBT ballot fights that groups such as PMW are starting.
The mainstream media should be aware of and pay especially close attention to marriage equality opponents’ new strategy of advancing their views through this diversionary scare tactic. This case presents a great opportunity to uphold policies that ensure fair elections, as well as have a frank and honest discussion about the actual arguments against marriage for gay couples. The media can play a key role in putting this latest political move into a larger context and expose it for the hypocritical shamelessness it really is.
Jeff Krehely is Director of LGBT Research and Communications Project at the Center for American Progress and Bret Evans is an intern.
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