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Thursday, September 17, 2009

Expanding the Political Battleground ?

There seems to be a growing tactic on the part of proponents of same sex marriage (or civil unions) to seek to "out" opponents.* Efforts to identify supporters of Prop 8 in California received a lot of attention and a similar effort is being made in Washington through two websites. Although the effort in California focuses on donors to the "yes" campaign, the efforts in Washington seek to publicize the indentity of those who signed petitions to place a referendum to "reject" the state's newly enacted domestic partnership law on the ballot.

A federal court has issued a preliminary injunction against disclosure of the names. This is, of course, a different issue than the disclosure of the identity of donors but two issues suggest themselves.

The first is whether opponents of same sex marriage could establish that their associational rights are jeopardized by disclosure. Could they show that they would be subject to hostility and reprisals? Here in Wisconsin, a young lawyer who was representing a pro bono client in support of the state's recent consitutional amendment (now being challenged as improperly enacted) was met with an organized campaign of phone calls to her firm and had to drop the client.

While that might seem to support a claim for anonymity (if it could be shown that donors would face the same thing), it is a bit different than the prototypical  NAACP v. Patterson situation. In the paradigmatic case, a minority faces pressure from the those holding a majority view. Here the claim would be that pressure is being put on persons holding either a majority view or a view held by a rather large minority (in Wisconsin, the amendment in question garnered 59% of the vote and, of course, Prop 8 won; although many polls show at least plurality support for domestic partnerships). Should that matter? Should the state compel disclosure of the identity of speakers who will face economic pressure? The effectiveness of such pressure might not turn on whether a majority or a minority holds the disfavored position since, for most economic actors, alienation of a nontrivial portion of the customer base is enough to compel silence - particularly when the speech is on the part of an employee whose employer has been pressured.

I am torn on this. My tendency is to see disclosure as a good thing, but I am troubled by politicization of the commercial and neighborly relationships and what can only be seen as an attempt to get one's political opponents to stand down. While I understand there is an almost ontological difference of opinion here and that proponents of same sex marriage feel a personal insult whether or not that is what opponents intend, it seems to me to be a form of political "total war."

The other issue concerns the value of this as a political strategy. If it appears to be an attempt to ostracize persons holding views that our shared by a majority (in the case of same sex marriage) and what is at least a very substantial minority (in the case of domestic partnerships). The idea, I suppose, is to define opposition as a bias against homosexuality and to define that as a form of prejudice on a par with animus against racial or ethnic minorities.

Might that backfire? Public sentiment on these issues seems more nuanced (or, some would say, contradictory) than the debate among the intellegentsia. Substantial numbers of people seem to, for example, oppose discrimination against gays and lesbians while also opposing same sex marriage. Even persons who have abandoned the prescriptions on homosexual relations traditionally held by the Abrahamic faiths may not be ready to see them as a form of "hate." If that's so, does it permit opponents to change the terms of the debate in ways that are not favorable to proponents' long term objectives?

* By way of full disclosure, I oppose same sex marriage on wholly secular grounds unrelated to any moral claim about homosexualitym, although I am not certain that there are not certain circumstances under which I would support it. I do oppose discrimination against gays and lesbians in areas such as employment and housing. I am representing a client in a challenge to Wisconsin's newly enacted domestic partnership registry which they feel too closely mimics marriage. I will not discuss that case or my client in the blogs.

Posted by Richard Esenberg on September 17, 2009 at 10:55 AM | Permalink


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I am no tort expert, but I wonder whether pressuring an attorney to drop a client is borderline tortious interference with business.

You are right to call it "total war." It has gone way too far. Disclosure will only be used to find more targets for warfare. Disclosure = good policy in general that will result in a bad outcome in this situation.

Intuitively, it would seem that a minority, no matter how large, would be unable to "ostracize the majority." Yet, on the playground, there are small individuals that are bullies and decide who plays handball and who plays tetherball. (Okay, not the best analogy in the world, but it's the first that came to mind.) Why? Perhaps the answer lies merely in the predominating personality, attitude, etc., that exist in the various parties, as opposed to the answer lying in some independent/external moral of right and wrong. Some personalities allow for bullying, and some allow for being bullied. So, the value of the political strategy is great--it appears to be working, regardless of how incorrect it is.

I'm interested in burden of proof. Those who oppose same sex marriage do so because of hate and discrimination? With whom does the burden of proof lie and what is the evidence?

Posted by: anon | Sep 17, 2009 4:04:06 PM

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