Donations: Glass half empty or half full?

A recent study shows that donations from individuals dropped in ’09, ’10. But numbers may be up for ’11

Geffen.David

David Geffen

Lisa Keen  |  Keen News Service
lisakeen@me.com

How well the LGBT groups are doing financially may well depend on whether one sees a glass as “half empty” or “half full,” but a report, released Tuesday, Dec. 6, by an independent think tank, certainly provides some facts to ponder.

Fewer than 3 percent of LGBT adults make contributions to national LGBT organizations, and the number of individuals giving to LGBT groups dropped 12 percent between 2009 and 2010, a trend that has been in play for the past five years.

The nation’s 40 largest and most important LGBT groups increased their combined revenue (cash and in-kind) by 1 percent between 2009 and 2010 from $163 million to $164 million, and they spent all but $4.6 million of that.

But the top 10 anti-gay groups spent “almost three times as much” as the 40 “major” pro-LGBT groups in 2010.

On average, national LGBT groups spend about 79 percent of their revenue on programs, 10 percent on management and administration, and 11 percent on fundraising.

While there are many harsh realities there, the Movement Advancement Project, an independent think tank devoted to studying how best to marshal the LGBT movement’s resources to “speed advancement of equality for LGBT people,” thinks the movement may be at a “turning point” financially.

“While [LGBT organizations] continued to cut expenses in 2010, organizations saw a slight increase in 2010 revenue, and are projecting expense budget increases for 2011,” said MAP in its 2011 National LGBT Movement Report.

“This,” said MAP, “suggests the LGBT movement may be at a turning point, or at least stabilizing, after seeing large drops in expenses and revenue over the last three years, mostly related to the economic downturn.”

MAP concluded that the “downward trend” in expenditures by the groups, a trend “precipitated by the economic downturn, may be at or nearing an end.”

The evidence, it said, is the fact that national LGBT groups’ projected expense budgets are 13 percent higher this year than last while their debt is smaller.

The report also reflects what economists and politicos have been discussing for a long time about the trend of wealth accumulating among corporations and a few individuals.

The average LGBT group, said MAP, receives 45 percent of its revenue from its 10 largest contributors. At the same time, organizations are increasingly getting their revenue from “corporations, bequests, in-kind contributions, fundraising events and other sources of income.”

“Of particular concern,” said the MAP report, “contributions from individual donors dropped sharply (a 14 percent drop, or $9.3 million) between 2009 and 2010. This revenue drop was mostly offset by revenue increases from corporations (41 percent increase, or $1.8 million), bequests (30 percent increase, or $1.6 million), fundraising events (6 percent increase, or $1.1 million) and other income (126 percent increase, or $3.2 million).”

MAP made its analysis using financial data from 40 LGBT groups, 27 of which had annual budgets of more than $1 million, and 13 additional organizations whose missions are considered “critical” to the LGBT movement.

The groups included such well-known national organizations as the Human Rights Campaign, Lambda Legal, and the Gay and Lesbian Victory Fund, as well as state groups, including MassEquality, the Empire State Pride Agenda and Equality California.

MAP Executive Director Ineke Mushovic said MAP used audited financial data for each group. Where an organization, such as the Human Rights Campaign, has a tax-deductible entity 501(c)(3), a non-tax-deductible entity 501(c)(4), and/or a political action committee, MAP combined the data and showed it all under one group name.

Mushovic said MAP agreed with participants not to release financial data on individual groups.

But Mushovic said the top 10 groups, in terms of revenue, are Equality California; the Gay and Lesbian Alliance Against Defamation; Gay, Lesbian and Straight Education Network; the Human Rights Campaign; Lambda Legal; the National Center for Lesbian Rights; Out & Equal; the Point Foundation; Senior Action in a Gay Environment and the National Gay and Lesbian Task Force.

MAP said the 40 LGBT groups represent 71 percent of all money spent by LGBT advocacy groups. It calculated this by analyzing 990 forms filed with the Internal Revenue Service by LGBT groups reporting more than $25,000 in revenue.

The five-year-old MAP organization issued a report last August showing that the LGBT movement is making progress but is being dramatically outspent by its opponents. That report, too, noted that only 3.4 percent of LGBT people made a contribution to national LGBT groups in 2009.

The 2010 report noted that while 550 LGBT non-profit groups collected a total of $574 million in contributions during 2009, most of that money  ($299 million or 52 percent) went to providing health services and community center programs. About $192 million (33 percent) was spent on advocacy, and about $35 million (6 percent) on legal challenges.

Arts and recreation accounted for about $36 million (6 percent). Only $13 million (2 percent) is spent on public education.

The current study was funded by 14 foundations that provide funding to LGBT groups, including the foundations started by well-known gay philanthropists such as David Bohnett, David Geffen, Tim Gill, Jim Hormel and Jon Stryker.

© 2011 by Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition December 9, 2011.

—  Kevin Thomas

DADT repeal starts Tuesday, but will discrimination continue?

DOJ says Log Cabin lawsuit should be declared ‘moot,’ but LCR attorney warns that without ruling, discriminatory policies could be reinstated

Baldwin.Polis
STILL FIGHTING | Attorney Dan Woods, right, and Log Cabin Republicans Executive Director R. Clarke Cooper, left, pose together following the ceremony last December in which President Obama signed legislation repealing DADT. (Photo courtesy Log Cabin Republicans)

Lisa Keen  |  Keen News Service
lisakeen@me.com

“Don’t ask, don’t tell” will be off the books Tuesday, Sept. 20. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

And Servicemembers Legal Defense Network is warning active duty military to be aware of rules affecting them if they choose to be openly gay in uniform.

Log Cabin Republicans’ attorney Dan Woods reminded a three-judge panel of the 9th Circuit U.S. Court of Appeals on Sept. 1 that Congressional repeal of DADT is not enough to end discrimination against gays in the military. Woods noted that before passage of DADT in 1993, there was a military regulation — not a federal law — that banned “homosexuals” from the military.

“That ban had existed for decades,” Woods said.

And if the 9th Circuit panel does not affirm a district court decision finding DADT unconstitutional, Woods added, “the government will be completely unconstrained in its ability to again ban gay service in the military.”

The 9th Circuit panel is considering a motion by the Department of Justice to declare the Log Cabin lawsuit moot since Congress has repealed DADT.

R. Clarke Cooper, executive director for Log Cabin Republicans said Tuesday, Sept. 13, that there is no prescribed timeline for the 9th Circuit issuing its decision on the motion.

“I know some people are expecting that we will have a ruling on that by Sept. 20 or just after that, but Dan Woods has told us that it could happen any time. And ‘any time’ means it could come in a month, or it could take several months. There’s nothing that says when the court has to issue its ruling,” Cooper said.

Woods pointed out that even since the repeal was passed by Congress last December, there is a new Congress now, there has already been a House vote to de-fund implementation of repeal, and there are “multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal.”

One member of the panel, Judge Barry Silverman, suggested the latter concern, about presidential candidates, seemed a bit “speculative.”

“Well, there’s an election next year,”  responded Wood.

“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”

The Department of Justice is urging the federal appeals panel to declare the Log Cabin Republicans v. U.S. lawsuit moot. The lawsuit — which won a powerful decision from U.S. District Court Judge Virginia Phillips in September 2010 — was largely responsible for prompting Congress to finally pass a bill repealing DADT in December.

Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal, military officials began warning Congress that it seemed inevitable the courts would strike down the law.

The military wanted a smooth transition to a DADT-free force, and Congress agreed.

Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot. He said the government would submit a motion after Sept. 20 to vacate the ruling and have the case sent back to the district court for dismissal.

Whitaker said that, if the 9th Circuit does affirm the lower court ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.

Woods said that if the federal appeals panel agrees with the government and vacates the lower court decision, and then a new president or Congress reinstates the policy, “we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional.

“This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again,” Woods said.

Woods also noted that affirming Judge Phillips’ ruling would remedy “collateral consequences” caused by DADT. Among those concerns, he said, are loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries, and requirement that discharged servicemembers pay back their student loans.

The DOJ’s Whitaker said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.” And, he added, said individuals discharged under DADT could seek remedies to these collateral forms of discrimination through individual lawsuits.

But Woods argued that it “ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.

“If you vacate the judgment and take away the case,” Woods added “the government is unconstrained and simply might do it again. History might repeat itself.”

For now, SLDN is trying to prepare gay active duty servicemembers for the historic change that is about to take place Tuesday when the 60-day review period will have ticked away following certification of military readiness to implement repeal.

And, not surprisingly, some organizations, including SLDN, plan to celebrate the end of the 18-year-old ban.

“Many servicemembers want to attend these celebrations, and some might want to speak at them,” noted the SLDN website, adding that “no special rules apply to attendance at or participation in such events.”

But SLDN did warn gay servicemembers not to criticize their commanders — past or present — or elected officials, and not to urge defeat of any particular elected official or candidate. And the organization warned servicemembers not to wear their uniform to an event that is partisan in nature.

For more details on what’s allowed and disallowed for active duty service members in uniform, see SLDN.org.

© 2011 Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition September 16, 2011.

—  Kevin Thomas

Obama administration says it will no longer defend DOMA, calls law unconstitutional

President Barack Obama

LGBT advocates call decision historic, monumental

LISA KEEN | Keen News Service

The Obama administration made a blockbuster announcement Wednesday, Feb. 23, saying it has concluded that one part of the Defense of Marriage Act will not be able to pass constitutional muster in the 2nd Circuit and that DOJ would not defend that part of the law in two pending cases in that circuit.

It was a dramatic, unexpected, and significant move by the Obama administration and one that could trigger maneuvers by DOMA supporters to appoint an intervenor to defend the law. But beyond the eventual legal consequences of the announcement, the political impact was characterized by most LGBT leaders as historic and monumental.

“This is a monumental turning point in the history of the quest for equality for lesbian, gay and bisexual people,” said Jon Davidson, legal director for Lambda Legal Defense and Education Fund.

NCLR Executive Director Kate Kendell put it even more strongly.

“The President’s leadership on this issue has forever changed the landscape for LGBT people in this country,” said Kendell. “For the first time, the President and the Department of Justice have recognized that laws that harm same-sex couples cannot be justified. This is the beginning of the end, not just for the mean-spirited and indefensible Defense of Marriage Act, but for the entire panoply of laws that discriminate against same-sex couples.”

Attorney General Eric Holder announced Wednesday that the Department of Justice would not defend the constitutionality of Section 3 of DOMA in two of the four cases where that section of the law is currently under challenge. Those two cases are Pedersen v. OPM, filed by Gay & Lesbian Advocates & Defenders, and Windsor v. United States, filed by the ACLU.

Two other cases — in the 1st Circuit — also challenge Section 3, which prohibits federal recognition of any same-sex marriage, as does a more narrow case, Golinski v. OPM, in the 9th Circuit, at the district court level.

DOMA Section 2, which enables states to ignore valid marriage licenses issued to same-sex couples from other states, has not yet been challenged in court and Holder made no reference to it.

Since entering the White House, President Obama has said that DOMA should be repealed, but his administration continued to defend the law, saying, through various spokespersons, that Obama was concerned about setting a precedent that would make it easier for some future administration to pick and choose which laws it would defend.

Last summer, asked whether there isn’t a difference between enforcing existing laws and defending them in court, his Domestic Policy chief, Melody Barnes, said the president believed DOMA and “don’t ask, don’t tell” to be “discriminatory” but that he had not yet “made an argument” concerning their constitutionality.

“[W]e believe we have an obligation to defend the law if Congress had a rational basis for passing the law,” said Barnes.

In his announcement Wednesday, Attorney General Holder noted that the administration would still defend DOMA Section 3 in the two 1st Circuit cases because the 1st Circuit has ruled that rational basis is sufficient justification for treating people differently based on their sexual orientation. (He was apparently referring to the unsuccessful class action case challenging DADT). But Holder also noted that DOJ attorneys would argue that the court should, instead, apply a stricter test for DOMA.

Lambda Marriage Project Director Jenny Pizer said the 1st Circuit would make its own decision about whether to adopt Holder’s view.

“Any court is going to make its own determination about what the law requires,” said Pizer. “The government is usually given particular credence, but it is always court’s job to decide what the law requires.” But Pizer noted that the increasing volume of voices declaring the injustice of DOMA can have an influence, particularly given that the arguments made in support of DOMA “are not even coherent.”

It is possible — just as happened in California — that some other entity might attempt to mount its own defense of DOMA in the pending cases. Last October, U.S. Rep. Lamar Smith, R-Texas, filed a motion in the two 1st Circuit cases, seeking to be named intervenor-defendant. Smith, aided by the right-wing Alliance Defense Fund, said at the time that the Justice Department was providing “no defense at all” for DOMA. He withdrew his motion a few weeks later, without comment.

Lambda’s Pizer said she thinks it is “very likely” someone will ask the 1st Circuit for permission to serve as a defendant-intervenor in the DOMA cases. And she noted Congress has the authority to appoint its own counsel to defend the law. Such was the development in the California same-sex marriage case, Perry v. Schwarzenegger. The federal district court allowed the group that sought passage of Proposition 8, Yes on 8, to defend the law at trial. The 9th Circuit recently asked the California Supreme Court to determine whether any state law gives Yes on 8 the authority to appeal that district court decision in the federal appeals court.

A three-judge panel of the First Circuit is currently receiving written briefs from both sides in the DOMA cases and, presumably, will now receive a written brief from DOJ arguing that DOMA Section 3 should meet a heightened standard of review.

NCLR’s Minter said he believes the law “can’t survive” that standard.

Mary Bonauto, lead attorney on the DOMA cases for GLAD, could not be reached for comment. But ACLU Executive Director Anthony Romero, executive director of the ACLU, which has filed one of the 2nd Circuit cases, praised President Obama doing doing “the right thing.” Romero said President Obama’s action has “just propelled gay rights into the 21st century, where it belongs. Our government finally recognizes what we knew 14 years ago — that the so-called ‘Defense of Marriage Act’ is a gross violation of the Constitution’s guarantee of equal protection before the law. DOMA betrays core American values of fairness, justice and dignity for all, and has no place in America.”

© 2011 Keen News Service. All rights reserved.

—  John Wright

Calif. Supreme Court agrees to rule on whether Prop 8 supporters have standing to appeal

LISA KEEN | Keen News Service

The road to marriage equality in California just got a little longer.

The California Supreme Court said today it would make ruling on whether Yes on 8 proponents have authority, under California law, to appeal a federal court ruling that the initiative is unconstitutional.

The announcement, at 4:20 p.m. Central time today, means the California court will soon hear arguments in the landmark Perry v. Schwarzenegger case. But the question will be a procedural one only: whether there is any authority under California law that would provide Yes on 8 proponents with standing to defend Proposition 8 in a federal appeals court.

The court’s brief announcement said it would hear arguments on an expedited schedule and asked that the first briefs be due March 14 and that oral argument take place as early as September.

Once the California Supreme Court decides whether state law provides any right to Yes on 8 to represent voters on appeal, the 9th Circuit U.S. Court of Appeals panel will then make its final determination as to whether Yes on 8 has standing to appeal. And, if the 9th Circuit says Yes on 8 does have standing, it will also rule on the constitutionality of Proposition 8.

The question before the California Supreme Court was whether there is any authority under California law that would enable Yes on 8 proponents to represent voters who approved Proposition 8. The answer mattered to the 9th Circuit Court of Appeals panel. Without any authority under state law, the appeals panel suggested, the group might not have any “standing” at all to appeal the decision. If a party has “standing,” they are sufficiently affected by a conflict to justify having a court hear their lawsuit or appeal on the matter.

When the legal team of Ted Olson and David Boies filed a legal challenge to California’s Proposition 8 in federal district court, the state, under Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, had standing to defend the law. But neither provided a defense and, instead, the Yes on 8 coalition that campaigned for the initiative did so.

When the district court found Proposition 8 unconstitutional, the state officers said they would not appeal the decision, so Yes on 8 once again sought to defend the law, this time in the federal appeals court. But both Schwarzenegger and Brown urged the 9th Circuit not to accept the appeal, saying the best thing for California was to abide by the district court ruling.

So, when the 9th Circuit panel heard oral arguments on the appeal last December, one of the first and most pressing issues it had to wrestle with was whether Yes on 8 still had “standing” to bring the appeal when the state government had decided it wanted to honor the district court decision.

What bothered the panel was their belief that the state officers — Schwarzenegger and Brown — were acquiring veto power by simply refusing to defend a voter-approved law with which they disagreed.

The panel asked the California Supreme Court to say whether there might be some authority under state law that would provide Yes on 8 with standing to bring the appeal.

The legal team challenging Proposition 8, led by Ted Olson and David Boies, filed briefs with the California Supreme Court, saying the state court should not provide such a determination because the standing issue in a federal appeals court is essentially a matter of federal law.

© 2011 by Keen News Service. All rights reserved.

—  John Wright

Prop 8 case sent to Calif. Supreme Court

LGBT advocates frustrated over delay

Lisa Keen  |  Keen News Service

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday, Jan. 4 when it suddenly issued five documents relating to the case.

But there was no decision Tuesday in Perry v. Schwarzenegger, the landmark case testing whether voters in California violated the U.S. Constitution when they amended the state constitution to ban marriage licenses for same-sex couples.

The bottom line of the documents was that the three-judge panel that heard arguments in an appeal of the case punted a critical question regarding legal standing to the California Supreme Court.

The appellate panel said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether Yes on 8 proponents of the initiative have an “authoritative” entitlement to represent the voters who passed the initiative in the appeal in federal court.

The announcement frustrated and disappointed many.

“It is frustrating that this will slow the case down, especially since there is nothing in California law that gives initiative proponents the power to force an appeal when the official representatives of the state have determined that doing so is not in the best interests of the state,” said Shannon Minter of the National Center for Lesbian Rights.

The development struck some as odd. It appears the federal court is asking a state court whether Yes on 8 has standing to appeal a lower federal court ruling that struck down Proposition 8.

“I don’t think it was necessary to ask the California Supreme Court to rule on that issue,” said Minter, “and I am disappointed the Ninth Circuit did so.” But Ted Olson, a lead attorney on the team challenging Proposition 8, said it’s not uncommon.

And it was not really a surprise to learn the panel is struggling with the question of standing. During oral argument on Dec. 6, all three judges seemed troubled by the idea that a state governor or attorney general could, in essence, acquire an ability to veto a measure passed by voters by simply refusing to defend a challenge to its constitutionality in court. The California constitution does not provide the governor or attorney general a right to veto voter-passed initiatives.

Both Judge Stephen Reinhardt, widely perceived to be the most liberal of the panel, and Judge Randy Smith, the most conservative, seemed concerned that the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. Judge Michael Hawkins expressed frustration during arguments that the panel might be prevented from rendering a decision about the constitutionality of Proposition 8 “so it’s clear, in California, who has the right to marry and who doesn’t.” The panel seemed prepared, on Dec. 6, to ask the California Supreme Court to weigh in on the issue — and it’s somewhat curious that they waited one month before actually doing so.

In its 21-page order to the California Supreme Court, the three-judge panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement … refuse to provide such a defense.”

Olson, in a telephone conference call with reporters soon after the court released its order, said that, if the California Supreme Court determines that there is no authority under state law for Yes on 8 to have standing to represent voters in the appeal, the 9th Circuit would be bound to accept that determination. However, the ruling on standing could still be appealed to the U.S. Supreme Court, he said.

If the California Supreme Court determines Yes on 8 does not have standing and the 9th Circuit rules accordingly, then the decision of U.S. District Court Judge Vaughn Walker on Aug. 4 will become the law throughout California, making it possible for same-sex couples to obtain marriage licenses.

Judge Walker ruled that Proposition 8 violates the U.S. Constitutional guarantees to equal protection and due process. Although neither the attorney general nor the governor provided any defense for the initiative during the trial last January, Walker did allow Yes on 8 proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean Yes on 8 has standing to appeal.

If Yes on 8 does appeal a loss on the issue of standing to the U.S. Supreme Court, and the high court rules in its favor, it would then most likely send the case back to the 9th Circuit for a ruling on constitutionality.

Meanwhile, among its other documents Tuesday, the 9th Circuit panel issued a 16-page opinion that Imperial County, Calif., does not have standing to appeal the district court decision itself. The panel said it was denying the county’s claim for standing on different grounds than did Judge Walker. The panel held that, because the county simply administers the state’s marriage law, it does not have any “interest on its own” to defend. The county has 14 days in which to appeal the panel’s ruling on standing.

The panel’s formal question to the California Supreme Court is: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

“If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative,” states the order, “then Proponents would also have standing to appeal on behalf of the State.

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents,” says the order, “and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.

“It is not sufficiently clear to us, however, whether California law does so,” said the panel. “In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law.”

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case — whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

“Further delay in restoring the freedom to marry in California is a lamentable hardship on couples,” said Evan Wolfson, head of the national Freedom to Marry group. “But I am confident that we will regain the freedom to marry in California soon.”

NCLR’s Minter agreed.

“I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives,” said Minter. “In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage. This will delay,” he said, “but not deny, the day that Proposition 8 is gone for good.”

The full text of the order is below.

© 2011 Keen News Service. All rights reserved.

CA9Doc 292

—  John Wright

What does Ken Mehlman have to say about his former boss, anti-gay Texas Rep. Lamar Smith?

Congressman Lamar Smith, R-Texas

If we could ask Ken Mehlman only one question, it might just be something about his one-time boss Lamar Smith.

Mehlman, the formerly anti-gay former RNC chair who recently came out as gay, served as Smith’s legislative director in the 1990s. Smith, meanwhile, seems to be vying for the title of No. 1 homophobe in Congress.

• In August, Smith sponsored a resolution to condemn U.S. District Judge Vaughn Walker’s decision declaring Proposition 8 unconstitutional.

• Also in August, Smith announced plans to introduce federal legislation that would define marriage as between one man and one woman.

• And now, Smith is asking a federal court to allow him to intervene in a case to help defend the Defense of Marriage Act, according to Keen News Service. The Alliance Defense Fund announced Tuesday it had filed motions on behalf of Smith asking to intervene in two cases in which a U.S. district judge in Massachusetts declared DOMA unconstitutional. The ADF argues on behalf of Smith that the Obama administration isn’t doing enough to defend the 1996 law, which some gay-rights activists don’t think the administration should be defending at all.

Interestingly, Smith’s Democratic opponent in November, Lainey Melnick, touts her opposition to DOMA prominently in the issues section of her website:

“It will be up to the [Supreme Court] to decide if the Defense of Marriage Act violates the Constitution by forcing the states to discriminate against same-sex couples,” Melnick writes. “This decision could uphold that federal encroachment over the areas where states have sovereign jurisdiction, such as with marriage, is unconstitutional and leaves marriage in the hands of the states. This question is to be answered by the courts, not the Congress. But I do believe that the US Constitution provides equal rights for all people, including same sex couples who want to get married, who want to own property, who want to make medical decisions, who want to share insurance expenses, who want to immigrate, who want to work, who want to serve in our military, and who deserve to live their lives free of discrimination.”

Unfortunately, Smith represents a pretty safe Republican district in Central Texas, and Melnick is facing some long odds. But who knows, maybe Smith’s one-time legislative director, Ken Mehlman, has something to tell us about him.

—  John Wright

The parents were not all right: Why Prop 8 passed

Newly released study says ads claiming same-sex marriage would endanger children, run late in the campaign, swayed enough parents to pass California’s anti-gay marriage amendment

Lisa Keen  |  Keen News Service LisaKeen@aol.com

David Fleischer
BY THE NUMBERS | David Fleischer talks to volunteers about results of a poll of Boston voters on the issue of same-sex marriage in 2004. This week, Fleischer released a study he conducted on what swayed voters to pass Proposition 8 in California in 2008. (Stanley Hu/Associated Press)

Proposition 8 passed in November 2008 because parents with kids living at home were scared and the LGBT community did nothing to assuage that fear.

That’s the conclusion of an exhaustive, 448-page analysis of the vote on California’s Proposition 8, which passed by 52 percent-to-48 percent — or barely 600,000 votes — in an election in which 13.7 million votes were cast.

But 500,000 of those 600,000 votes were ready to side with the LGBT community against Proposition 8 up until the last six weeks of the campaign.

During those last six weeks, explained the report’s author, David Fleischer, the Yes on 8 campaign saturated the television airwaves with advertisements that borrowed from the 30-year-old Anita Bryant “Save the Children” campaign from 1977.

The advertisements — also used successfully in 2009 in Maine — told parents that the legalization of same-sex marriage would require public schools to teach children that same-sex marriage is a viable option for them. The No on 8 campaign failed to respond directly and quickly to that claim and, thus, lost the vote.

Fleischer’s analysis — “The Prop 8 Report: What Defeat in California Can Teach Us about Winning Future Ballot Measures on Same-sex Marriage,” — was released Aug. 3 and drives home the point that “anti-gay forces know how to exploit and stimulate anti-gay prejudice, and the LGBT community has difficulty facing and responding to the attack.”

“Recycling a lie as old as Anita Bryant’s ‘Save the Children’ campaign in 1977,” said Fleischer, “the anti-gay Yes on 8 campaign whipped up fears about kids to move voters to its side.”

Fleischer rejected analyses proffered by other political observers who suggested that African-American voters had been the deciding factor in the Proposition 8 vote. He also rejected a recent analysis by political scientist Patrick Egan, who said spending large amounts of money on ad campaigns has no impact because most voters’ minds on gay ballot measures are made up long before election day.

Instead, Fleischer lays the passage of Proposition 8 at the feet of “parents with children under 18 living at home,” saying that about 500,000 such voters switched from “no” to “yes” on 8 in the closing weeks. And he says the No on 8 ad campaign could have made a difference if it had responded quickly and directly to the fears parlayed by the Yes on 8 ads.

The most effective Yes on 8 ad, said Fleischer, was one showing a little girl coming home and telling her mother that she had just learned in school that a prince can marry a prince and that she could marry a princess.

The narrator then claimed that, “When Massachusetts legalized gay marriage, schools began teaching second-graders that boys can marry boys. … The courts ruled parents had no right to object.”

“The lesson of the ‘Yes on 8’ campaign,” said Fleischer, is that “when parents hear that their kids are in danger, even if it’s a lie, some of them believe it — particularly when the lie largely goes unanswered.”

“Those ads are fear-mongering directed at parents to make them think their children are in danger,” said Fleischer, during a conference call with reporters Tuesday, Aug. 3.

He noted that daily polling data showed that adults with no children at home did not show any change in their plans to vote against Proposition 8 once the so-called “Princes” ad started airing, but adults with children at home changed their plans — from voting against to voting for Proposition 8 — in dramatic numbers.

The “Princes” ad was on the air by Oct. 7, just a week after Yes on 8 had begun airing another TV ad in which San Francisco Mayor Gavin Newsom was shown telling a crowd that gay marriage is “going to happen — whether you like it or not.”

Prior to those ads going up, said Fleischer, polling showed a virtual tie on the Proposition 8 question.

“Yes on 8’s fear-mongering about children was particularly effective because No on 8 waited 17 of the 30 days remaining until the election was over to directly respond,” said Fleischer.

“[W]hen an anti-LGBT campaign alleging indoctrination of kids unfolds on TV; and when that campaign is well-funded enough that the average voters see ads exploiting anti-gay prejudice five or more times each week for four to five weeks; then the ads generate, awaken, reawaken or reinforce a response among some voters that moves them to vote against the LGBT community,” wrote Fleischer in his report.

The report can be viewed in its entirety at Prop8Report.org.

Fleischer spent many years training openly gay candidates to run for elective office as a part of the Gay & Lesbian Victory Fund and then the National Gay and Lesbian Task Force. He notes, in the report, that he has participated in more than 100 campaigns to “preempt, stop, delay, and overcome anti-LGBT ballot measures.”

His analysis examined more than 10,000 pages of data and related documents and included more than 40 hours of interviews with No on 8 officials. Fleischer also analyzed the use and penetration of every television ad aired by both the pro- and anti-gay campaigns in Proposition 8.

Fleischer says data shows that the initiative, approved by a margin of about 600,000 votes, secured 687,000 votes in the last six weeks of the campaign. More than 500,000 of these crucial last-minute shifters were parents with children under 18 living at home.

Parents, noted Fleischer, comprised about 30 percent of the 13.7 million voters in California in November 2008. While Yes on 8 initially had only a two-point lead over No on 8 in this 4 million-strong demographic group, it had a 24-point lead on election day.

“Overall, parents with kids under 18 at home began the campaign evenly divided on same-sex marriage,” said Fleischer, “but ended up against us by a lopsided margin.”

But they weren’t the only groups to shift away from a pro-gay position.

“Other groups that moved significantly in favor of the ban on same-sex marriage included white Democrats (by 24 points), voters in the greater Bay Area (31 points), voters age 30-39 (29 points), and Independent voters (26 points).”

Fleischer criticized the No on 8 campaign for delegating “too much of the thinking and therefore too much of the de facto decision-making” to consultants. And he said its message to voters was “vague, inconsistent, and too often de-gayed, reducing its power to persuade.”

No on 8 took too long to respond to the “Princes” ad, said Fleischer, because its decision-makers “did not choose to directly respond to the attack.”

There had been a change in leadership in the No on 8 campaign just a week before “Princes” began airing, and the new decisions-makers also hired a new media firm to create their ads. But their failure to act quickly and directly was hardly anything new.

“The LGBT community has historically avoided responding directly to the issue of kids,” said Fleischer, “in part out of the belief that no response will defuse the issue, and in part out of a wish not to have to face this unfair, untrue defamation.”

But that failure to respond, said Fleischer, amounts to a “decision not to defend LGBT people as trustworthy.”

Ballot measures over gay civil rights issues have been taking place throughout the United States since 1974, but pro-gay ballot campaigns didn’t even use the word “gay” until 2002 and didn’t use an openly gay spokesperson until 2004.

Although acknowledging that he had not studied Maine as thoroughly as California, Fleischer also criticized the No on 1 campaign there that fought an initiative to repeal the state’s marriage equality law.

He said the  No on 1 campaign also avoided responding directly to the “kids are in danger” ads and even avoided using the word “gay” in all but one of their own ads.

Rather than respond to the Yes on 1’s claim that marriage equality would put the kids of voters in danger, noted Fleischer, No on 1 talked about the need to protect gay kids and children with gay parents.

Post-election data from Maine’s campaign — which repealed its marriage equality law in 2009 — suggested the parents’ concerns there were not that kids would experiment with being gay. Instead, said Fleischer, parents were concerned their kids would accept gay couples and that other kids would be raised by gay parents.

Fleischer strongly recommended that the LGBT community not return to the ballot box “until we are prepared to vitiate this [child-related fear-mongering] attack.”

He also urges future campaigns to adopt a more modern approach to campaigning — one that calls for quick, direct and forceful responses to attacks.

Fleischer’s analysis was not entirely critical of the No on 8 campaign. He credited the campaign with enlisting a “record-breaking” number of volunteers and dollars, and making “a series of smart choices that maximized the number of dollars raised and volunteers involved.”

Kate Kendell, one of the best known No on 8 leaders, said of Fleischer’s report, “I think we need to learn all we can about how to win these campaigns and we need to digest all the info we get to do that.”

Meanwhile, Equality California, which was a key component of the No on 8 campaign in 2008, issued a press release July 20 indicating it plans to organize for a ballot measure to repeal Proposition 8 in 2012.

© 2010 Keen News Service

This article appeared in the Dallas Voice print edition August 6, 2010.

—  Kevin Thomas