A Homo's Thoughts

I've heard all of the ludicrous talking points and self-victimizing rhetoric, but Frank Schubert's latest take on the Proposition 8 legal case might be the biggest bout of sore-loserdom I'm ever witnessed from an anti-LGBT commentator.

In an article that originated at the Public Discourse (a project of the conservative Witherspoon Institute) and has made its way around the conservative media space, the National Organization For Marriage political director and Prop 8 campaign mastermind stops trying to beat his opponents in the school of thought. Instead, Schubert pushes a new meme claiming that those of us on the right side of history "cheated" people like him. Here's a snippet:

The Cheaters Won
It’s only natural for people to want to know how I feel about the outcome, not only from a policy perspective but also from a personal perspective. After all, I put my heart into managing (and winning) the Prop 8 campaign in 2008, and since then have spent much of my professional career working on preserving marriage throughout the nation.
Here’s how I feel.
I feel like we were cheated. Just like I felt as a kid watching the bad guy put a sleeper hold on his opponent, or hitting him below the belt or with the brass knuckles while the referee had his back turned, so have the legal system and politicians cold-cocked the people of California—seven million of whom went to the polls to lawfully enact Prop 8. Only this time, I realize there’s not likely to be a rematch. The cheaters won.
I feel like the rule of law has been shredded, and conniving politicians have been rewarded for ignoring their sworn oath of office. Public confidence in the judicial system has been dealt a severe blow. Supporters of same-sex “marriage” may be happy with the result today, but hold on until the tables are turned and a conservative governor and attorney general refuse to defend a law they don’t personally support, and there’s nobody left with standing to defend it. The seeds of that action will have been sown by leftist politicians like Brown, Harris, and Schwarzenegger.

I feel like a broadside has ripped a great hole in the initiative and referendum process itself. I have managed nearly forty statewide ballot initiative campaigns in my career. The initiative process is one of the few viable ways to get a recalcitrant government to respond to legitimate issues that are not being addressed by the legislature or the state administration. By its nature, citizens are often pushing a law that is opposed by those in power.
Now those very people in power—the governor and attorney general—have been given a pocket veto over the initiative process itself. They can invalidate any measure they don’t personally support simply by refusing to defend it in federal court. Such power was never contemplated by the framers of the constitution, or by the people of California, but that is the practical result of the Supreme Court’s ruling on Prop 8. Again—it is marriage today, but tomorrow it could be any other issue on the political spectrum.
http://www.thepublicdiscourse.com/2013/07/10603/FULL PIECE: [Public Discourse]

Let's consider a few facts here, shall we?

• Same-sex couples had marriage equality in California.  The state Supreme Court made that possible in the spring of 2008.  No one had to step in and stop it, but Frank Schubert and his pals did in fact do that.  They couldn't stand by and let loving taxpayers enjoy civil freedoms, so they took it upon themselves to rob people of their rights.  Who cheated whom, Frank?!

• Folks like Schubert always overlook the 6,401,482 California voters who opposed Prop 8 back in '08.  They act like they had some sweeping mandate, when in fact, less than 600,000 votes separated the two sides.  In a state with a population of over thirty-eight million, that's a very small gap. And by the time Prop 8 made it to the Supreme Court, a majority of Californians stated they wanted the law overturned and marriage benefits to be available to couples. 

• Schubert faults figures like California's Governor, Jerry Brown, and the state's Attorney General, Kamala Harris, for not defending Prop 8.  But let's remember that the same California public that passed Prop 8 is the same public that elected both of these officials.  The anti-LGBT crowd tried to put their opponents in office instead, but their efforts were unsuccessful.  California elected Brown and Harris in 2010, and both of them were open about their opposition to Proposition 8.  In fact, both were (and remain) proud to say that they will not defend this unconstitutional law.

• Schubert acts like the fair legal process surrounding Prop 8 is an attack on the initiative and referendum process itself, but that is just plain silly.  What the legal process says is that the initiative and referendum process does come with limits.  The judiciary's role has always been to ensure that our processes are playing out in a way that they should, particularly when it comes to minority populations.  Hopefully we could all agree that referendums seeking to take away people's right to marry on the basis of religion, race, national origin, etc. would be out of line and unconstitutional.  In this Prop 8 process, it was the Prop 8 proponents' desire to strip marriage rights on the basis of gender that was up for scrutiny—and they lost.  Initiatives and referendums will go on from here, but they will never be free from constitutional checks and balances.

• And last and most importantly: Frank Schubert and his close allies had just as much of a court opportunity as the Prop 8 opponents.  Their legal team got together their best team, their best arguments, their best witnesses, and the best foot they could put forward.  They had the chance to make this their shining moment and prove to us all, once and for all, that these "protect marriage" campaigns are just as effective when they rely on a legal standard higher than misleadingly code-worded press releases, reliance on anti-gay religious leaders, outmoded stereotypes, and animus toward a certain minority population.  They could have said anything they wanted, made any case they found effective, and submitted any witness that they thought would seal the deal.  Buy they blew it.  THEY. BLEW. IT.  Even other anti-LGBT legal groups thought so.  Their court case—replete, might I remind you, with a star witness who is now a staunch suppoter of marriage equality—was laughably bad.

It's of course easy to soften a blow by accusing your opponent of cheating.  Every school kid who has every said or been subjected to a "cheater, cheater, pumpkin eater" chant knows the attempt.  However, the ease of delivery does not do anything for the intellectual value.

Frank Schubert is mad because Frank Schubert built his entire national profile around marriage campaigns that turns gay people's civil rights into a popularity contest.  Those of us who argue for marriage equality have been saying for years now—decades, even—that these efforts are unfair and will ultimately fail.  People like Schubert were all high and mighty, especially when they were winning in the polls.  But the fact is that, while yes, we on the right side of history certainly married our claims with a dash of hopeful optimism, we were also telling the truth.  We said that anti-gay bans are unconstitutional because they were!  Had our opposition gone with us on a fair intellectual journey rather than gone the other direction with misinformative campaigns that duped the public into believing they were acting on both good faith and sound policy, then they could have save us all a lot of time and good will.  But no, they couldn't do that.  They thumbed their noses at us, our families, our growing support system, and, most importantly—our constitution.  

They tried to cheat us out of the American dream.  Cheaters never win.