I’ve often thought I should write a column called, “Weird Things Lawyers Do,” to explain to normal people why attorneys, like me, spend so much time arguing about meaningless points. If you read any of the Prop 8 federal trial transcripts you may have noticed that a lot of that trial was spent arguing about whether LGBT people had political power. It was a classic case of lawyers bringing everything to a standstill to fight like feral cats about something totally off topic.
But that question does, in fact, matter a lot.
The reason why the issue of LGBT political power is so important in any LGBT discrimination case is this: Discrimination lawsuits are usually the remedy of last resort, so the courts want to make sure that there’s a very good reason for them to step in. One of the ways they look at this is by asking how much political power the targeted group has to fight for its rights on its own.
When you have a majority of people voting for something like Prop 8 based on their firmly held (if completely delusional) beliefs, the court doesn’t want to up-end the voter’s will without first finding out if that’s really the only way for the targeted group to adequately defend itself. Think back to high school civics and all that stuff about checks and balances. The court is supposed to check the overreach of legislators or even voters, but they can’t go overboard and thereby undermine the democratic process. Therefore, to challenge the tyranny of the majority in court, we have to prove we’re politically powerless first.
We’re in an odd situation now. We’ve made so much progress that we have HRC schmoozing with the president, gay marriage in maybe 8 states by next year, a gay cable channel and “girlfriend” jeans for men. Can we really say that we have no political power? Isn’t that the point of all this awareness work, to increase our clout as a community?
The campaign against Prop 8 generated millions of dollars and we had people like George Clooney and Brad Pitt on our side. On either side, it was perhaps the largest ballot initiative campaign in any state ever. So it makes me cringe a little that we have to act all victim-y in court to fight for our civil rights. And yet we do.
I struggled watching this play out, knowing as an attorney that there were good reasons to claim this powerlessness, but still feeling like some important fact was missing. It didn’t make sense to me that as we got closer to equality as a community, the courts would be less inclined to support our equality.
I finally figured it out this month at a conference of LGBT law and policy wonks who came together just to look at this issue. First of all, if you haven’t already noticed, the other side really likes to turn the oppression narrative around on us. As I discussed in my last column, they are spending big money to disseminate the idea that we are bullying them into silence. Poor homophobes are suffering no less than full PTSD from retaliation by very mean and powerful gay people. A panelist at the conference I attended read examples of this harassment from witness declarations: Gay people gave Prop 8 supporters dirty looks at the local country club, sons wrote disapproving letters to parents expressing sadness at their support for the measure. Hair-curling stuff.
I’d like to call bulls*&t on this silly rhetoric and remind people, again, what kind of damage homophobia still does to our community, especially or young members, despite any political gains we’ve made.
Second, as law professor Kenji Yashino explained, this whole “political power” thing is a catch-22. Courts won’t give you the time of day if you’re truly politically powerless. Of the top of my head, I would guess that homeless people haven’t exactly hit pay dirt in court, for example. In other words, to win, you have to have enough political power to hire the people and the consultants to demonstrate that you don’t have enough political power to do that. Yep, lawyers are weird.
*Abby is a civil rights attorney-turned-author who has been in the LGBT rights trenches for 25+ years. She can be reached through her website:queerquestionsstraighttalk.com.