Since the Democrats have 57 seats in the Senate (and might soon have more), the question was raised whether we could expect better progress now on LGBT civil rights issues because of that.
Cathcart pointed out that in the Senate, to really get things done, 60 votes is ideal. That’s the point at which you have the votes to cut off discussion, and prevent amendments from being tacked onto bills. You can’t count on every Democratic vote, or discount every Republican. The thing to keep in mind is how best to move them all in the direction of the things we want for gay civil rights. “The Hate Crimes bill may pass yet this year, and be signed into law. While it’s not the biggest thing on the agenda, the Hate Crimes bill is a good thing to lead with, because it’s less controversial,” said Cathcart. Then we can look at ENDA, Don’t Ask Don’t Tell, and DOMA. As more states allow gay marriage, more lawmakers may come around. After all, why uphold a federal law barring gay marriage when back home in the state you represent they’re allowing couples to marry?
Cathcart was asked about the significance of Prop. 8 passing in California, normally a leader in the fight for equal rights.
Cathcart said that “people will make of California what they make of it. It’s a convenient vote to hide behind.” (“Look, even California struck down gay marriage.”) But Cathcart also said, “It’s not the barrier we thought it would be.” Since Prop. 8, Iowa’s courts and Vermont and Maine’s legislatures opened up the way for gay marriage in their states. “I can’t overstate how important it was that those rights were gained in two different ways, the courts the legislatures.” Also, Prop. 8 was “a fairly narrow loss,” numbers that people could imagine turning around in two to four years.
Proposition 8 came up again when someone wondered what lessons were learned in the unsuccessful campaign to stop the ballot initiative from passing. What things could be done better next time?
Cathcart thinks that there are at least three things that might help.
First, there wasn’t enough grassroots outreach this time. While there always needs to be a media component, that’s not the only way to go. You can lose people with the wrong ads on TV, but you very rarely win people over with a commercial. There needs to be more face to face conversation. There need to be more endorsements from leaders in the communities where people live.
Second, there wasn’t targeted enough outreach to communities of color. The campaign was grounded in the mainstream media, and California is now a state where the minorities are the majority.
Third, those who supported gay marriage weren’t prepared for how the other side would use children against them. The supporters of Prop. 8 got ads on TV that made parents nervous, and once they started airing, there was an immediate drop in the polls. (For instance, a little girl comes home to say she learned in school today that she could grow up and marry a princess.) Civil rights are fine if it’s an issue that has to do with other people. If you have to start having awkward conversations at home with your child that you’re not prepared for, that’s something else again. The LGBT community had shied away from dealing with the issue of children head on. They had nothing with which to respond to those TV ads. In Iowa and Maine, things were already different. Kids with gay parents hit the airwaves in Maine, while ads about Iowa values, and “This is how we treat people” appeared in the midwest.
As for next time in California, Cathcart thinks “enough mistakes were made that are fixable. We only have to move the dial five points to get a nice comfortable win. If we can crack those three things - grassroots, communities of color, and the issue of how it affects children,” he thinks things stand a better chance of turning out differently.
And now that Proposition 8 has been upheld in California as expected, what are the prospects it might go on to the United States Supreme Court?
“Zero,” said Cathcart. “That was deliberate. There are no federal claims. The people who brought the challenge focused only on the California state constitution, so the decision of the California court would be the last word.” The Supreme Court would have to find federal, constitutional grounds to intervene. For that, they’d need to find LGBT rights somewhere inherent in the Constitution and the current Justices don’t seem conversant or comfortable with the issue. Baker v. Nelson turned back the case as a state, rather than a federal issue. No Justice wants to take on an argument they can’t win. An apocryphal story has someone asking a Supreme Court Justice what their most important skill is on the job. The response, “The ability to count to five.” If you can’t build an argument that brings four other Justices along with you, you can’t win. It’s often preferable to be known even for a mediocre victory, rather than writing a really brilliant dissenting opinion for the losing side.
Someone asked if the source of homosexuality was found, scientifically proven, located in a gene somewhere, if that might force the Supreme Court to recognize LGBT civil rights. If being gay, like race, were immutable, wouldn’t that help speed things along?
Cathcart’s response was that he didn’t think we needed to wait that long. There will always be some dissent in the scientific and psychological community over the nature and basis of homosexuality. “They’re still arguing about lie detectors and fingerprints after all these years,” he added. “It shouldn’t matter. Our legal system is flexible enough to provide protections now. Even gender and race are fuzzier than the law thinks they are. A person can switch from one religion to another and they don’t lose their protections of religious freedom.” It’s better, in Cathcart’s opinion, to stay out of what he called, “the morass of scientific fact.” Besides, the minute someone locates a gene for homosexuality, “someone’s going to start looking for a ‘cure.’”
The question of who decides on strategy in the pursuit of LGBT civil rights and how it’s decided came up.
Cathcart admitted that there is no one central deciding body. There are many overlapping strategies. On the legal side, Lambda Legal (lambdalegal.org), the American Civil Liberties Union (aclu.org), Gay & Lesbian Advocates & Defenders (glad.org), and the National Center for Lesbian Rights (nclrights.org) all work together to coordinate their strategies, but they don’t do the legislative work. Sometimes the strategies of federal and state organizations over legislative matters conflict. The grassroots movement is another wild card in the mix. For instance, nobody really controls where the reaction to the passage of Proposition 8 in California (“Stonewall 2.0”) is going.
Now that the California Supreme Court has upheld Prop. 8, some people are worried about the reaction in the streets. “People have a right to be angry,” Cathcart conceded. “People should demonstrate. But if it could be peaceful, I’d be happy.” Given the proliferation of technology, there’ll be far more video footage of whatever response takes place. “That footage can and will be around forever.” Video of a violent response would surely be fodder for any ballot initiatives in the future. Many people were relieved when word of a decision didn’t take place this past Thursday, as it was the 30th anniversary of the White Night Riots in San Francisco, when Dan White got off with a light sentence after being convicted of killing gay rights pioneer Harvey Milk, and mayor George Moscone.
Cathcart said that the strategy of winning the hearts and minds of the general populace is key to winning court cases. When constructing the case for gay marriage in Iowa, the six couples were carefully selected in order to cover the widest area of the state, and thus garner the widest media coverage in the most markets. Meeting with the editorial boards of newspapers all over the state helped get the message out. Editorial pages are the kind of thing that trickles up to judges and legislators when they’re looking for a barometer of public opinion. The legal organizations also made sure to have a local voice argue their case, getting the former Solicitor General of Iowa on board as a cooperating attorney. He was born and raised in Iowa, studied there, was elected there. He knew the judges. Opponents couldn’t argue that some big city lawyer from New York or Chicago was coming into their state and telling them what to do. Choosing the best messenger is important. “You need to win in a way that makes it easy to defend your victory,” Cathcart said. Bringing the legislature along at the same time you’re preparing your case for court is important. Otherwise you run the risk of having the legislature come out and immediately want to overturn any progress the courts have made. The key players need to be prepared before they get dragged out in front of TV cameras and asked to comment. For instance, in the wake of the court decision in Iowa, the leaders of both the House and Senate came out with a statement of support concluding, “We believe that when people look back on this years from now, the only question they’re going to ask is ‘Why did it take so long?’” The longer the legislature can hold the line, the easier it gets to continue to hold the line. “You can’t get stampeded over later the same way you can right at the beginning.” Because the longer the law is in place, the more people get married, the more people know people who’ve gotten married, the more weddings they might attended themselves. “And they realize,” said Cathcart, “’Hey, the world hasn’t ended. My marriage is just the same as it was before.’”
One key argument that still hasn’t taken hold is the distinction between civil marriage vs. religious marriage. The fight for gay marriage is for a civil ceremony, a contract entered into with the government issuing the license. It’s completely different from a religious ceremony, in the same way that a civil divorce is different from a religious divorce. Nobody gets those two confused. But Cathcart feels the movement for LBGT civil rights needs to work harder to get more religious leaders out there spreading the word - talking to their congregations, talking to the press. “Because if a local minister says, ‘Gay marriage is not a problem for me. It doesn’t force our church to do anything we don’t want to do.’ That makes a difference to people in the community. But they two types of marriage have been conflated for so long it’s hard to unthread this. It doesn’t help,” Cathcart said, “that the legislative leaders, up to and including the President, mix it up. The President knows the answers. Politically, he doesn’t want to talk about them.”
The notion of militancy and flamboyant tactics came up for discussion. When civil tactics don’t make enough noise to get any news coverage, how do we shape the message and get the word out in a way that helps the cause rather than harms it?
Defining what’s “militant” is a tricky discussion. “Everyone draws the line in a different place,” said Cathcart. “But in the fight for civil rights, you very rarely get everything you ask for. In a good year, you get maybe 60 percent. Don’t censor yourself first. If you start by only asking for 80 percent of what you want, you’ll only get 40 percent. Militant voices open up a space for discussion.” If we were only proposing civil unions or domestic partnerships, the other side would be attacking those with the same arguments they’re currently hurling at gay marriage. “The only reason civil unions and domestic partnerships are being considered ‘the middle ground’ is because the end point being discussed is marriage.” If we err on the side of caution, and not asking strongly enough for what we want, the middle ground just gets smaller and smaller. You can’t control the media. “Everybody can have a blog, everybody can cross-post things.” Rather than try to shut hate speech down, respond to hate speech with more speech. “We’ve got more allies today than we used to, in all areas - business, military, and religious leaders. Find these spokespeople, get them out there talking. Get a chorus of voices out there, not just civil rights people. The more people who are talking, the more likely we are to be heard.”
Someone in the crowd asked about the role of Executive Orders, actions taken by the President that don’t need the approval of Congress. What items on the gay civil rights wish list might be taken care of in such a manner?
Cathcart said that “military law is a curious animal.” He’s heard both sides of the “Don’t Ask, Don’t Tell” debate weigh in and say, “Yes, the President can strike down Don’t Ask, Don’t Tell.” and “No, he can’t.” Every action has political consequences. “I’m of the opinion that Presidents have a lot of power and if there’s something they want done, they can find a way to make it happen,” Cathcart continued. The danger in angering Congress by going around them is that nothing else might get done. Payback might stall out other advances (passing ENDA, repealing DOMA, a host of other issues). “But, there are a lot of things that happen in the federal government that no one sees. Questions on the census, health department surveys, funding for gay-specific programs,” he said. “Even in a time of decreased funding, a lot of money flows out of Washington. There are more openly gay people, and their allies, up for positions in the government right now than in the previous eight years combined. Some of them are stalled in confirmation. Some of them are still putting together their staff. The new administration is committed to making changes. It’ll be interesting to see in the next three to six months what change starts to trickle down from the government.”
The final questioner wondered if the worries about the economy made gay rights less of a “big deal” for the general population - why are we fighting about this when we have bigger problems to deal with?
Cathcart feels the downturn in the economy has only hurt the cause of civil rights for the GLBT community. Real opportunity for change, perhaps the best opportunity ever, has arrived. But all the key organizations and institutions that are best suited to do the work that needs to be done to capitalize on this opportunity are shrinking. National and state groups, lobbying groups, are all smaller than they were six months ago, and they’ll likely be still smaller six months from now. “You can only work smarter with fewer resources up to a point,” Cathcart said. Then the work slows down, and drags out. “We’re not sure how long this window of opportunity lasts.” It would be a shame if the economic hit these organizations are taking, along with the rest of the country, causes us to miss taking advantage of the opportunities now before us. “So give generously,” Cathcart said. “And get out there and be a part of it yourself.”