The Marriage Amendment Lawsuit is (Unfortunately) a Waste of Time

Babblemur is all over UW-O professor Bill McConkey's lawsuit over last fall's marriage amendment and is apparently ticked off that Fair Wisconsin has plans neither to join the litigation nor to file any of its own. Here's some idle speculation on why FW is making the right decision:

1.) Lawsuits, especially one's that are aimed to ultimately work their way up the appellate process to the U.S. Supreme Court, are expensive and resource intensive. FW is relatively new and may not be able to to afford doing this. Yes, other groups from around the nation would likely chip in money and expertise, but ...

2.) This particular lawsuit is an extreme longshot. This wouldn't be about an injustice done to a specific person regarding a heretofore vaguely written law, but would rather call into question the very process by which the state constitution is amended. I did not agree with the outcome of the referendum, but because it is now part of the constitution, which means we're no longer "merely" dealing about the gay marriage issue here: there will now be far more fundamental legal principles at stake that will complicate the case to the point that the original intent of the suit will be minimized to the point of negligibility.

3.) Hearts and minds, hearts and minds, hearts and minds! What FW did an amazing job doing last fall was framing the debate in terms that appealed to a broad swath of people that may have otherwise thought differently. This is especially true among young people, who will likely do the heavy lifting of reversing the amendment's course in the future. FW is taking the long view, which is exactly what they should be doing. Why? Because ...

4.) The marriage amendment may have been a tactical victory for its supporters, but it will most certainly be a strategic catastrophe for them.

This last point will take a little explaining. Everyone knows that the amendment was nothing more than a political ploy intended to drive out the conservative base to polls. The state GOP even said as much. In this sense, it was a "culture war" "magic bullet" that can only be used once to serve its intended purpose. There are not a lot of these available in the social conservative arsenal left, if any.

The purpose of the amendment -- to help elect Mark Green governor and maintain or advance the Republican agenda in both the state legislation and congressional delegation -- failed miserably. The sponsors got one shot at this and it didn't work, which means they will think twice about going to the bash-the-gays well again in the future, if for no other reason than they will think it to be more trouble than it's worth.

Which brings me to the Pyhrric nature of the amendment's victory. The worst possible thing any homophobic agenda, for its own sake, could have done is to bring homosexuality out of the closet -- and that's exactly what it did last fall. There was actually a conversation about what it means to be gay in Wisconsin and -- lo and behold! -- it turns out that the lives of most gay Wisconsinites are just as mundane and dull as the rest of us. If marriage amendment supporters wanted to successfully marginalize the gay community they would have kept it in the closet, where straight folks can only rely on rumors and their own worst imaginations to form their opinions about homosexuality.

Now the genie's out of the bottle and it's not going back in. There has been an explosion in same-sex couples in Wisconsin since the turn of the century. As their exposure becomes more prevalent, more people will realize they have nothing to fear from homosexuality. This will not be easy or fast, but this is the best way to do it.

Reasonable minds should be thinking right now, "But, between now and when that ever happens, won't gay people suffer from an injustice?" The unfortunate answer to that is yes, they will; but the magnitude of that injustice will diminish as time goes on and gays win more social acceptance until it slips quietly into the night.

Finally, there's another very good reason to not rely on the courts to settle this matter:

5.) Legal technicalities are a mystery to the average person. From this indisputable fact came forth social conservatism's most successful PR strategy: blame the "activist judges." Legal issues are hard to explain to the uninitiated, and as a consequence are easy to manipulate. The extreme right has reliably been able to rile its base by screaming bloody murder about a "judiciary run a muck" because the people they are speaking to likely don't know any better and are unwilling to wade through the nuances of the legalities (this is especially true with issues that strike an immediate and visceral nerve). By avoiding litigation FW is not playing into their hands.

The Fair Wisconsin game plan of public relations offense and legislative defense is a solid long term strategy that will win in the end. Yes, it will take patience and sacrifice, but goals that are achieved through as such are always longer lasting. The marriage amendment supporters sought a cheap political victory, and they got it, but in the long run they'll have little to show for it save a misguided effort to stain the principles and real values of tolerance and acceptance in Wisconsin.

[P.S.: I cross-posted this at Babblemure just to get the word out.]