A reminder - Why NOM keeps losing in the courts

Jennifer Roback Morse

From my online blogging buddy Jeremy Hooper comes the following comments by Jennifer Roback Morse of the National Organization for Marriage's Ruth Institute on why folks on her side of the spectrum win at the ballot box but lose in the court when it comes to marriage equality:

"If you look at elections, we're winning the war on marriage. No doubt about it. We're winning the war at the ballot box. Anytime marriage goes up on a straight up-or-down vote, it wins.

Where we keep losing is in the courts, and the reason has to do with the way the elites of our society view marriage. The people who go to the top law schools, who teach at the top universities, the advertising departments of many of the major corporations – those people have already decided that marriage has nothing particularly to do with children and is really just about how adults feel with one another … and if that's all that marriage is, well, then, of course two same-sex people should be allowed to get married.

Of course Ms. Morse is full of it. The reason why NOM wins at the ballot box is because, as Equality Matters puts it, an explosion of  inaccurate information backed by lots and lots of money:

 . . . these referendums very rarely end up actually reflecting the will of the voters.

Instead, they tend to be co-opted by well-financed special interest groups like NOM that flood voters with misleading and outright false information in order to inflate public opinion against minority groups (in this case, the LGBT community). As law professor Paula Abrams wrote in 2008:

One can readily conclude that lawmaking by initiative, the manifestation of unchecked majority will, carries a high risk of producing bad laws. The “bad law” risk posed by the initiative is not simply that of generic poor policy. The absence of the deliberative process can leave the voters with profoundly inaccurate information. False information may be an unintended byproduct of the public campaign, or it may be deliberately disseminated for political advantage. Deliberate dissemination of false information can be a particularly potent and harmful strategy to agitate the majority against minority groups. Immune from legislative or executive review, initiative campaigns may rely on appeals to voter prejudice. [Oregon Law Review, Vol. 87, 1025, emphasis added, 2008]

By false information, Abrams means things like the following:

Now the reason why NOM - and other groups like it - have lost in the courts has less to do with some garbage about elites, but rather a simple thing called truth, or as lawyer David Boies told Family Research Council head Tony Perkins in a now famous scolding on CBS's Face The Nation last year:

"In a court of law you've got to come in and you've got to support those opinions, you've got to stand up under oath and cross-examination," Boies said. "And what we saw at trial is that it's very easy for the people who want to deprive gay and lesbian citizens of the right to vote [sic] to make all sorts of statements and campaign literature, or in debates where they can't be cross-examined.

"But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that's what happened here. There simply wasn't any evidence, there weren't any of those studies. There weren't any empirical studies. That's just made up. That's junk science. It's easy to say that on television. But a witness stand is a lonely place to lie. And when you come into court you can't do that.

"That's what we proved: We put fear and prejudice on trial, and fear and prejudice lost," Boies said. 

In other words, NOM and its allies keep losing in the courts because the facts simply aren't on their side. Truth isn't on their side.

And all of the money in the world or spin by folks like Morse can ever change that.