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Mark Hefflinger: Anti-Gay Groups Playing the Victim in Court

Mark Hefflinger: Anti-Gay Groups Playing the Victim in Court

by Mark Hefflinger on July 5, 2010

Austin Nimocks (Alliance Defense Fund), Andy Pugno (Atty. for Protect Marriage/Yes on 8) At the press conference following closing arguments in Perry v. Schwarzenegger: Austin Nimocks of the Alliance Defense Fund; Protect Marriage/Yes on 8 Attorney Andy Pugno (photo: Mark Hefflinger)

A federal court in Washington state is currently weighing whether signers of a 2009 ballot petition face a grave enough threat of reprisal for their support of “traditional marriage,” to warrant blocking the release of their names as required under a state law. The petition they signed aimed to strip domestic partner protections from gay and lesbian couples, but voters approved Ref. 71 and kept the protections intact.

Ref71Last month, the U.S. Supreme Court ruled strongly in favor of disclosure, rejecting in their 8-1 decision in Doe v. Reed the notion that publicly disclosing the names of petition signers generally violates their First Amendment rights. Chief Justice John Roberts wrote in the majority opinion that disclosure helps root out fraud in signature gathering, and “promotes transparency and accountability in the electoral process to an extent that other measures cannot.”

What the Court mostly eschewed, and left for the Washington state court to address, is whether the particular case of Washington’s Ref. 71 presents special circumstances warranting an exception to disclosure, due to a “reasonable probability” that disclosure of these petitions will subject petition signers to “threats, harassment, or reprisals.”

Justice Samuel Alito tries to make the case in his Doe v. Reed concurring opinion that “the widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption [from disclosure] in the present case.”

Evidence of this purported harassment and intimidation suffered by backers of Prop. 8 — the ballot measure that stripped the rights of gays and lesbians to wed in California in 2008 — has been trumpeted far and wide by anti-gay groups wishing to perpetuate a meme that they are in fact victims in their campaigns to codify gay Americans as second-class citizens.

Perry v. Schwarzenegger plaintiff Sandy Stier (front); plaintiffs Paul Katami, Jeff Zarrillo and Kris Perry, AFER's Chad Griffin (photo: Mark Hefflinger) Outside the courthouse before closing arguments: Perry v. Schwarzenegger plaintiff Sandy Stier (front); plaintiffs Paul Katami, Jeff Zarrillo and Kris Perry, Chad Griffin of American Foundation for Equal Rights (photo: Mark Hefflinger)

I felt extremely privileged last month to have one of the precious few seats in the ceremonial courtroom in San Francisco and witness the closing arguments in Perry v. Schwarzenegger, the federal court challenge to California’s Proposition 8 — the constitutional amendment enacted during the historic 2008 election that stripped away the right of gay and lesbian couples to marry in the state.

I wish that wasn’t the case. I wish that everyone who has been hanging on every word of these proceedings — and everyone who still hadn’t heard of the historic case at all — could have been watching the hearing unfold on TV along with me, or at least on YouTube. But the U.S. Supreme Court was persuaded to block broadcast of the trial, in part by arguments that the publicity could potentially lead to harassment of the proponents of Prop. 8 by those who don’t agree with them.

Because, let’s face it: the straight folks who worked so hard and gave so much money to see Prop. 8 passed — and not gay and lesbian Californians — were the real victims during the campaign. It’s the straights who have suffered greatly since Prop. 8′s passage, and they are the ones who should be spared any further grief.

ADF_logoFrom campaign yard sign theft to less cordial treatment at the country club to (perfectly legal) boycotts of their businesses, and in some instances — in the words of U.S. Supreme Court Justice Clarence Thomas in his Citizens United opinion, “ruined careers” — the proponents of Prop. 8 supposedly have faced “systematic intimidation,” as the Alliance Defense Fund (ADF), legal advocates for “religious freedom,” put it.

This canard of “playing the victim” has increasingly been used as a tactic by anti-gay groups as they go on the offensive, and turn the tables on actual statistics about hate crimes and teen suicides and discharged soldiers and equal rights denied. They counter with their own list of grievances suffered at the hands of “intolerant” gays.

Playing the victim can be a successful tactic. For instance, it appears to work when used as a means of self-justification by those who are victimizing others; or to solicit support from sympathetic audiences; or to divert attention away from real acts of abuse. Where the strategy of playing the victim fails are instances in which claims of abuse are examined with due diligence — as one would hope might happen in a federal court with rules of evidence.

Playing the victim is a time-honored tactic, and has been utilized to varying degrees of success recently in other cases that weren’t before the Supreme Court. During an Easter (also, Passover) week mass at St. Peter’s Basilica, the Catholic Church’s Rev. Raniero Cantalamessa condemned this spring’s media coverage of the Church’s globally expanding cover-up of child abuse by priests as an attack on Catholics akin to anti-Semitism. The Church’s Fr. Gabriele Amorth went as far as to allege that The New York Times’ reporting on the scandal was “prompted by the Devil.”

Reasonable people condemned Rev. Cantalamessa’s statement out-of-hand as reprehensible: the Catholic Church is not in any sense a victim of its child-raping priests. Here, the strategy of playing the victim achieved a unique level of offensiveness, when the Church likened their fretting over having been caught perpetuating child rape to the suffering endured by victims of the Holocaust, which this same Catholic Church did nothing to condemn while it was happening.

ashleyfailAnd consider this incident from the fall of 2008 (the same campaign season as Prop 8): the tale of Ashley Todd. The 20-year-old McCain campaign volunteer alleged that a large black man pinned her down on the street and carved a backwards letter “B” — apparently short for “Barack” — onto her face because he had seen a McCain bumper sticker on her car. For a few hours that day, the horrible story was at the top of the news…until people took a second look at that photo. That was just, odd — unless you were carving the letter “B” onto your own cheek, while looking into a mirror — which is what Ashley Todd did.

Unfortunately, sometimes those playing the victim have a larger megaphone, and their story becomes the dominant narrative, drowning out the true victims. As we have seen with Prop. 8 in California, and in Maine in 2009, majorities of voters can be swayed to sympathize with a meme of victimization that reinforces their beliefs, in spite of undeniable evidence that contradicts them.

IMGP6056 Charles Cooper, lead counsel for the Defendants/Yes on 8, at the press conference following closing arguments in Perry v. Schwarzenegger (photo: Mark Hefflinger)

The incident reports of “systematic intimidation” of the proponents of Prop. 8 from the heat of the campaign and its aftermath weren’t just used by the U.S. Supreme Court in their decision to block cameras from the courtroom. (Protect Marriage attorney Charles Cooper told the Court that his clients would be subjected to “harassment, economic reprisal, threat and even physical violence.”) The same incidents were also used by Protect Marriage/”Yes on 8″ as part of their stated reasoning for withdrawing witnesses from the trial in Perry v. Schwarzenegger.

“I do not like people questioning me on my private personal beliefs,” Prop. 8 proponent Hak-Shing William Tam said in explaining his desire to withdraw as a defendant-intervener in the case. One of Tam’s “beliefs” — as evidence showed in the Prop 8. trial — was that the next item on the gay agenda after securing marriage equality would be to “legalize having sex with children.”

“The question is really whether Judge Walker can put people on the stand where they can be threatened,” Brian Brown, executive director of the National Organization for Marriage (NOM), told the Washington Times. “It’s a question of people’s safety.”

“They really risk pain and grief for that and are paying a heavy price,” Thomas Messner, the author of a Heritage Foundation report called “The Price of Prop. 8,” told the Deseret News in November 2009. (Ted Olson, co-counsel for the plaintiffs in the Perry case, speculated that the defendant-interveners’ real motive in seeking to withdraw its witnesses from the case was to prevent them from being subjected to intense cross-examination by fellow co-counsel David Boies).

The Supreme Court also considered this body of “systematic intimidation” evidence in the Citizens United case, with Justice Thomas basing his separate written opinion squarely on those allegations.

Most recently, the incidents of alleged anti-Prop 8 harassment were submitted as evidence in Doe v. Reed, the case now back before the District Court in Washington.

Thankfully, the good folks at Lambda Legal, Gay & Lesbian Advocates & Defenders (GLAD), the National Center for Lesbian Rights (NCLR) did the due diligence and examined each and every reported incident of “systematic intimidation” submitted to the Supreme Court in Doe v. Reed by the Alliance Defense Fund, which is counsel for Protect Marriage in the Perry case. The gay rights groups filed a fascinating and revealing amicus brief in the case, which takes on the allegations point-by-point.

From the brief:

“Petitioners seek, through their feint of victimization, to take away one of the few defenses that lesbian and gay individuals have to defend against hostile initiatives: the use of public records to stop the fraudulent qualification of such measures in the first place, and to lobby, through personal advocacy, the people who legislate using such measures…to deprive lesbian and gay Americans of rights.” (emphasis added)


The gay rights groups’ exhaustive audit of the reports of violence, vandalism and intimidation uncovered just two credible reports of physical violence against Prop. 8 supporters.

According to their brief, one incident took place in the Castro, where it is alleged that “someone shoved and hit someone with a bible and threw coffee during a ‘prayer walk’ by a group that tries to ‘convert’ gay people to heterosexuality, who decided to hold this walk through a gay neighborhood during the emotionally charged days immediately after the passage of Proposition 8.” The woman was interviewed on Fox News’ “The O’Reilly Factor,” with O’Reilly praising her for having “turned the other cheek.” (The clip was screened in the courtroom by the Defendant-Interveners/Yes on 8 on the eighth day of the Perry v. Schwarzenegger proceedings.)

The other incident involved Phyllis Burgess — a self-proclaimed anti-gay protestor who alleges she was “shoved,” and had her Styrofoam cross taken from her hands as she pushed her way into the thick of an anti-Prop. 8 protest. A clip of the incident would also later appear on a segment of “The O’Reilly Factor.”

The gay rights groups’ brief notes that these individuals “deliberately thrust themselves into a position where an unfriendly reaction was foreseeable.” And, it seems to me, their antagonistic behavior no doubt added to their chances of provoking a reaction.

The legal brief also contextualizes other alleged incidents of violence presented by ADF, including a “scuffle over yard signs” and an alleged water-ballooning:

“If true, these three incidents are not hallmarks of high-minded debate, but they are a far cry from the types of systemic political violence implied by ADF or routinely faced by lesbian and gay persons during such campaigns. Los Angeles County alone documented four violent hate crimes, including serious assault, targeting LGBT individuals over Proposition 8.”


All three of the ADF’s reports of alleged death threats were directed at leaders of the Yes on 8 campaign, including one to the Mayor of Fresno, and one that cites YouTube comments — on a video posted the Traditional Values Coalition’s Prop. 8 spokesperson by William Tam — the witness in Perry v. Schwarzenegger who posited that gay people want to “legalize having sex with children.”

The gay rights groups’ brief notes that leaders of the No on Prop. 8 campaign similarly received death threats and further, that such incidents are not uncommon in other campaigns, citing the recent health care debate that saw death threats leveled at some lawmakers.


Post Election Day 2008 protest at Mormon church building in Los Angeles (photo: Mark Hefflinger) Post Election Day 2008 protest at Mormon church building in Los Angeles (photo: Mark Hefflinger)

The day after Barack Obama was elected, several thousand took to the streets in Los Angeles to protest the Prop. 8 vote at the Mormon Church’s headquarters building, eager to express their displeasure with the church’s deep involvement in the successful effort to strip away the civil rights of gay Californians. While no white powder was seen that day, the protest drew huge media attention and in following weeks two Mormon temples and a Catholic Church-affiliated Knights of Columbus printing plant reported receiving envelopes containing suspicious powder in the mail, and reported them as possible terrorist incidents. Lambda Legal, GLAD and NCLR point out in their brief that, while the recipients blamed the incidents on the gay community, “the FBI had no evidence that linked the threats to Proposition 8 or its opponents.”


While the final tally of “systematic intimidation” incidents could seem impressive in number, the gay rights groups’ analysis found a disproportionate number of them to be related to campaign yard signs — those painted plastic bags attached to wire hangers that campaigns generally give out for free:

“While vandalism should never be excused, it is important to note that a huge number of such allegations consist of nothing more than stealing, ripping, or writing on yard signs and bumper stickers…

Such conduct is endemic to virtually any hard-fought political campaign. Signs for No on 8, Barack Obama, and John McCain were all routinely stolen in the California 2008 election too.”


Screen shot 2010-07-05 at 10.38.50 PMMuch ado was made of the brave new world of transparency that followed the release of a creative technological mash-up that fed the names and addresses of the 64,000 donors who contributed a combined $83 million to both sides of Prop. 8, along with the amount they gave, into a Google Map.  On the Eightmaps.com website, anyone could zoom in and see which of their neighbors or local business owners or out-of-state interests made financial contributions to either side.

The disclosures enabled the organization of boycotts, and threats of boycotts, against businesses or organizations whose managers made financial contributions to Yes on 8. The ADF’s submission to the Supreme Court cited three individuals who allegedly resigned from their jobs as a result of pressure and negative publicity over their donations.

On the subject of boycotts, the gay rights groups’ brief implored the Justices to remember that:

“Such advocacy lies at the heart of First Amendment protections, with a long tradition in our democracy as a means for minority groups to express dissent…

Lesbian and gay people have every right not to patronize businesses or individuals who act to deprive them of their rights, and to encourage others to do the same. Groups opposed to legal protections for lesbian and gay individuals, moreover, routinely boycott companies that they deem too friendly to gay people.”

Of course, Yes on 8 supporters threatened to boycott businesses that donated to the No on 8 campaign. One could also contrast these election-related boycotts with the myriad boycotts that religious groups have instigated over the years against companies with gay-friendly or tolerant policies, and the brief cites the examples McDonald’s and Disney (“Gay Days“).

But remember — Justice Clarence Thomas cited “ruined careers” in his, with respect, crazy opinion in the Citizens United case. Were any careers “ruined” by boycotts of Prop. 8 donors by the gay community and its allies?

elcoyotePerhaps the most infamous post-Prop. 8 boycott was staged against El Coyote, a Mexican restaurant in L.A. whose owner’s daughter donated $100 to Yes on 8. When Marjorie Christoffersen’s pow-wow with members of the gay community who had been among the most frequent customers of the restaurant didn’t go smoothly, the LDS member said she felt pressured to quit. However, the Wall Street Journal reported in its story on the El Coyote boycott from December 27, 2008 (less than two months after Prop. 8 passed) that Christoffersen in fact “returned to the café when the protests faded.” This fact was confirmed by a report this April that Marjorie Christoffersen is still employed at the restaurant.

Richard Raddon was another LDS member and Yes on 8 donor who eventually resigned as director of the L.A. Film Festival after threats of boycotts of the festival from marriage equality supporters.  Did this event lead to Raddon’s shunning by the entertainment industry in which he had made his career?

In December 2009, Raddon co-founded an Internet venture, MovieClips.com, which was respected enough in gay-friendly Hollywood to have been able to secure licenses from all the major movie studios to offer clips of their films online.

The venture has received favorable coverage in The Los Angeles Times, The New York Times and The Wall Street Journal, all publications that also reported on Raddon’s resignation from LAFF.

It also seems unlikely that a ruinous state has befallen the career of the third oft-referenced occupational martyr of Prop. 8. Scott Eckern resigned from his position as artistic director of Sacramento’s California Musical Theatre (CMT) in the aftermath of the revelation that the LDS member had donated $1,000 to Yes on 8, triggering threats of a boycott from members of the theater community including Marc Shaiman (who not long after would write Prop 8: The Musical.)

An April 2009 report from the Mormon Times, part of Salt Lake City’s Deseret News, saw Eckern (four months after resigning from CMT) helming a production that featured more than 600 performers and was recorded live for a national television special, and also released on CD.

So it would seem that there is no credible evidence to support the claim that anyone’s career or business was ruined due to his or her financial support of Prop. 8. And yet, without federal and state protections, how many LGBT people are denied jobs or fired on a daily basis — legally — solely because of who they are?

Perry v. Schwarzenegger plaintiffs Kris Perry and Sandy Stier (photo: Mark Hefflinger) Perry v. Schwarzenegger plaintiffs Kris Perry and Sandy Stier (photo: Mark Hefflinger)

A legion of experts testified in Perry v. Schwarzenegger that gays and lesbians have long been real victims of discrimination. District Court Judge Vaughn Walker has already rightly chastised the other side for not presenting a similar range of credible witnesses to prove their case that marriage would be “deinstitutionalized” if gays were permitted to wed.

Lambda Legal’s Jenny Pizer called it “worrisome” in her analysis for LGBT POV that “five of our nine Supreme Court justices apparently credited, at least to some extent, the claims that gay people have been meting out violence and intimidation” in ruling against cameras in the courtroom in the Prop. 8 trial.

The fact that this evidence of “systematic intimidation” has sprung up in a completely unrelated case before the high court shows an urgent need for these false, exaggerated and hearsay allegations to be called out for the feigned victimizations that they are.

The District Court in Washington now has a responsibility to carefully scrutinize the evidence of “systematic intimidation” alongside the amicus brief that Lambda Legal, GLAD and NCLR assembled in Doe v. Reed.

Protect Marriage Washington is confident that the court will prevent disclosure of the petition signers’ names. James Bopp, Jr., lead counsel for Protect Marriage Washington, told the Christian Post:

“While we wish the [Supreme] Court had agreed with us and found that petition signers speaking on any issue should be protected from having personal information disclosed to the public, we are looking forward to returning to Washington and showing the Court that supporters of traditional marriage should have their personal information protected from disclosure…

Supporters of traditional marriage have been subject to death threats, vandalism, and even the loss of their jobs merely for exercising their right to free speech. We are confident that the District Court will agree that these tactics have no place in the discussion of marriage.”

Jon Davidson, Legal Director of Lambda Legal Jon Davidson, Legal Director of Lambda Legal

Jon Davidson, the Legal Director of Lambda Legal who co-authored the gay rights groups’ brief, predicts that the Referendum 71 supporters will not be able to meet the standard for secrecy laid down by the Supreme Court:

“The Court said that those seeking to prevent disclosure of the petitions must establish that there is a ‘reasonable probability’ — not just a possibility –  that petition signers will be harassed or suffer other repercussions as a result of making the petitions public.  But those seeking secrecy have failed to show that anyone throughout history who has signed a petition to put a measure on a ballot in any state has ever been harassed.  Moreover, the names of those who contributed financially to Referendum 71 have been public since before the election, and yet no one has shown that any of them has ever been harassed.  It is pure fantasy that disclosure will harm those who simply signed a petition (whose signature may indicate nothing more than a belief that the measure should be voted on or even the easiest way to get by an insistent petition gatherer).”

The high-water mark case that established a sort of legal threshold on what constitutes intimidation worthy of a disclosure exemption is 1958′s NAACP v. Alabama. The Court blocked the state of Alabama’s request for the NAACP’s member lists in its bid to literally run the group out of the state, holding that such a disclosure would interfere with the free association rights of NAACP members.

The state argued that the NAACP’s involvement in organizing the Montgomery bus boycotts and helping students enroll in the state university was “causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama.”

Again here, where one might reasonably see African-Americans’ civil rights suffering irreparable injury as a result of their being barred from attending state college in Alabama — came the contrary argument that in fact the NAACP, through its work to end segregation, was violating the civil rights of Alabamans.

The District Court in Washington, the federal courts that will be hearing the appeals in Perry V. Schwarzenegger, and other courts in other states that are sure to be presented these allegations have a responsibility to carefully scrutinize them. If these courts examine the allegations of  “systematic intimidation” of Prop. 8 supporters at the hands of the gay community with the same due diligence as the authors of the Lambda amicus brief, the courts cannot possibly find them to be convincing.

Press conference after closing arguments in Perry v. Schwarzenegger: Plaintiffs' attorneys Ted Olson and David Boies; plaintiffs Sandy Stier and Kris Perry (photo: Mark Hefflinger) Press conference after closing arguments in Perry v. Schwarzenegger: Plaintiffs’ attorneys Ted Olson and David Boies; plaintiffs Sandy Stier and Kris Perry (photo: Mark Hefflinger)

{ 2 trackbacks }

NOM’s “shocking” video of mother “harassed” at Albany tour stop « Prop 8 Trial Tracker
July 19, 2010 at 4:01 PM
Judge Walker’s court posts video and documentary evidence presented during federal Prop 8 trial « Prop 8 Trial Tracker
August 11, 2010 at 2:04 PM

{ 2 comments… read them below or add one }

Tom Lang July 6, 2010 at 10:49 AM

I am the director of the group that was the reason for the anti-gays trying to block our efforts in Washington state. They made this about Prop 8 but the reality is that this is in fact about KnowThyNeighbor’s strategy, a very personal one about those in your life who would sign petitions to take away your rights. KTN has published close to 1 million names of signers of antigay petitions and there has been no issue. SCOTUS looked and found nothing systemic or non systemic. What it found was for the right of those of us whose rights are being taken away that we are protected in the very least by the first amendment to exclaim in a civil and legal way our discontent
I only wish articles such as this would not lose sight of the activist and personal context of KnowThyNeighbors strategy here


Sara Robinson July 6, 2010 at 12:00 PM

This growing sense of victimization Mark writes about is a great example of the persecution complex that’s central to all authoritarian movements. It’s a sort of collective paranoia — God is on their side, and they are doing His work, so naturally Satan and his minions are out to get them. (In fact: it’s taken as proof that they’re on the right track.) Chesterton (or perhaps it was Mencken?) once said that conservatives can do without a God, but they can’t get through the day without a devil. Their entire worldview depends on the existence of an existential enemy who’s out to annihilate them.

This need is so central to their thinking that if there are no actual persecutors around, they’ll go to considerable lengths to make some up. (It’s wonderful that Lambda did the work of chasing down the real stories and debunking them.) The most egregious case was about a decade ago, when Pat Robertson seriously intoned that “what’s happening to Christians in America today is worse than what happened to the Jews under Hitler.” He’s never lived that down — but you can hear fundie ministers making similarly overwrought claims in churches around the country any given week. Very often, their primary persecutors are “promoters of the gay agenda,” so it’s natural that they took this tack.

This is the shadow side of victim politics — the fact that it creates a climate that encourages this really annoying trait to come to the fore, and increases the odds that they’ll get some unwarranted sympathy for it from people (say, your average reporter) who don’t understand the psychology at work here. It’s also a persuasive argument that the folks on our side should avoid engaging in victim politics wherever possible (no, it’s not always possible), and find other ways to press the case. The right gets a free pass on this behavior only as long as they can convince people that what they’re doing is claiming their “civil rights,” which they spin as being absolutely no different than what we’re doing.

Looking forward, it seems likely that we’ll be hearing more and more of this kind of whinging in the years ahead as the anti-gay losses mount up. The more minority their position, the more persecuted they feel, and the farther out of their way they’ll go to create fictitious persecutors. Loud public claims of victimization are a clear sign of a right-wing movement that’s been pushed back on its heels, and is feeling the losses. As they lose every other argument, the panic over their “persecution” will increase — until, at the bitter end, their myths of martyrdom at the hands of evildoers will be the only outrage they’ll have left to cling to.

The upshot is that the more of this silly nonsense we encounter, the closer we are to winning.


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