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Impact Litigation + Strong Media Narrative = Social Change

Guest Post: Adam Umhoefer and Felix Schein

On November 4, 2008, the same day our nation elected its first African American president, the voters of California passed Proposition 8, an amendment to the state constitution that eliminated the fundamental freedom of gay and lesbian couples to marry.

The passage of Prop. 8 was a demoralizing loss for marriage equality supporters. If we could lose the right to marry in California, we could lose it anywhere. In weighing our options about how to win back what voters of California had taken away from us — and to prevent this injustice from spreading to other states, we decided not to try for another ballot initiative or to seek a legislative solution. Instead, we realized that we needed to make people everywhere aware that marriage equality was not just a gay rights issue, but a basic American value consistent with our nation’s commitment to equal rights for all its citizens.Adam_U

So, in the spring of 2009, we worked with a group of visionaries — including Chad Griffin, Kristina Schake, Dustin Lance Black, Bruce Cohen, and Rob and Michelle Reiner — and founded the American Foundation for Equal Rights (AFER) to challenge Prop 8. in federal court.

Although AFER’s case against Prop. 8, Hollingsworth v. Perry, would be argued and ultimately decided in court, we also saw the litigation as a chance for launching a comprehensive public education campaign with a compelling media narrative that would be aimed at Americans in all 50 states.

As part of our strategy over the course of Hollingsworth v. Perry, we used every court hearing as a teachable moment — an opportunity to drive a media narrative that exposed the emptiness of our opponents’ discriminatory arguments.

In January 2010, our case went to trial before the Federal District Court in San Francisco in what would become America’s “truth commission” on marriage equality. For the first time, a federal court heard testimony on marriage for gay and lesbian couples. Our four plaintiffs all took the stand, putting a human face to the hurt and indignity imposed by Prop. 8. And nine of the world’s leading experts on marriage, gay and lesbian history, childrearing, public health, and psychology all testified in favor of marriage equality.F_schein_2

When it came time for our opponents to present their case, it became crystal clear to everyone in court, and to the media covering the case, that the facts and the law were on our side.  Indeed, our opponents’ lead attorney stated that he did not know how marriage equality would harm heterosexual married couples. And their own star witness testified under oath that we would be “more American” the day our nation embraces marriage equality.

Not only did the court rule in our favor when, in August 2010, it struck down Prop. 8, but an unprecedented shift in Americans’ support for marriage equality began to sweep the country as we drove forward a constitutional narrative with truly national implications. At the start of our case, a Gallup poll showed that only 40 percent of Americans supported the freedom to marry. By May 2011, just two years later, that number had skyrocketed to 53 percent.

And that was only the beginning. By the time the Supreme Court heard our case in March 2013, we had the weight of public opinion behind us. An ever-growing majority of Americans — as high as 58 percent — now favor marriage equality. And, moreover, our case was strengthened by the more than fifty “friend of the Court” briefs filed in support of marriage equality, including from the United States Department of Justicehundreds of major corporations, and more than 100 Republican leaders.

The result was momentous. On June 26, 2013, the High Court issued two landmark rulings—one in our case that ended Prop. 8 and restored marriage equality in California; another that struck down the Defense of Marriage Act and extended federal recognition to married gay and lesbian couples. Thirteen states, encompassing thirty percent of the American population, now have marriage equality.

Marriage equality supporters could have tried to achieve these victories merely by lobbying voters and lawmakers. We could have waited until the tides began to turn. But in filing our lawsuit against Prop. 8, we were confident that we had the best chance at achieving the greatest, most lasting impact.

This summer we celebrated the marriages of our plaintiffs and thousands of other gay and lesbian couples in California. Now we ready ourselves for the next court battle. For our work is not complete until marriage equality is a reality for every American.

Adam Umhoefer is the executive director, American Foundation for Equal Rights (AFER); and Felix Schein is principal, Griffin Schein. Umhoefer and Schein will lead a discussion at the Communications Network Fall Conference. October 2-4, Impact Litigation as a Tool for Social Change: Perry v. Hollingsworth and the National Conversation about Marriage Equality about how, when supported by a robust communications campaign, impact litigation is an effective platform to fight imbalances of power and influence public opinion.


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