From earlier this week, in response to Ted Olson’s surprise move to attempt to resolve federal marriage policy via judicial fiat (via the Corner):

Gay groups say federal marriage suit premature

SAN FRANCISCO – A coalition of gay-rights groups said Wednesday that a federal same-sex marriage lawsuit brought by two high-profile lawyers is premature and they’d rather work through state legislatures and voters to win wedding rights.

Now they decide this. Full disclosure: I support the extension of marriage benefits to same-sex couples, via the legislative process.

Take a look at this map:

The very short version of the map key: if there’s blue, green, or purple, then same-sex marriage advocates won there. If there isn’t, we lost. It’s actually worse than it looks, though. At least two of the purple states (Iowa and Massachusetts) are places where same-sex marriage was imposed via the court system; and I frankly expect Massachusetts to ban it once its state legislature finally lets the issue go to a referendum. Meanwhile, something like thirty states now have actual Constitutional amendments banning SSM, and over ten more have legislation doing the same. Even civil unions are formally banned in almost 40% of the states.

And this is all because of the strategy first seen in that 1993 Hawaii Supreme Court decision. Trying to do an end run around the legislatures has disastrously backfired for same-sex marriage advocates; it did nothing except gave our opponents free rein among people wary of judicial overreach – which is a group not limited to the Republican party, as an examination of California/Florida’s 2008 election results might show. Or a look at the curious inability of this Congress or any other to revisit DoMA. Or, indeed, the fact that the Hawaii court decision itself was later reversed by a constitutional amendment banning same-sex marriage.

In case it isn’t clear, I am an advocate for same-sex marriage myself. But if we want it passed in this country, there are three things that need to happen:

1. Abandon all attempts to get the courts to do an end run around the legislative process. It doesn’t work.
2. Stop demonizing our opponents. The Carrie Prejean / Perez Hilton flap was a PR disaster – particularly since it followed a very ugly set of scenes from same-sex marriage supporters over Proposition 8. And, no, nobody cares if people were upset over that. People care if we’re adults about losing. We weren’t.
3. Stop trying to frame this debate in terms that would work to convince us, and start trying to frame it in terms that work to convince our opponents. This ‘marriage equality’ current term of art? Great for making people feel warm and self-righteous; not so great in convincing the 57% of the population who currently oppose same-sex marriage.

Where we can win on this discussion is by pursuing specific goals. Poll after poll shows that the American people are more supportive of visitation rights, inheritance rights, adoption rights, insurance rights, and even formally recognizing and regulating domestic partnerships; they just don’t like being ordered to do it, and thanks to sixteen years of poor message discipline, they’re currently associating the same-sex marriage advocate’s position with a sneer. Americans quite enjoy wiping sneers off of people’s faces; we’ve been doing it for over 200 years, and we’ve gotten quite good at it. What we don’t like to do is, say, tell somebody who has spent twenty years with somebody else that he can’t be with his lover while his lover is dying. But using that argument effectively requires one side of the debate to not only act like they respect the other side’s moral opinions, but to actually respect them, too. See #2 above.

So while I’m happy to see that the same-sex marriage groups have gotten the message; but I want to make sure that they’ve gotten the message. It’s time to try something that will actually, well, work.

Moe Lane

PS: Yes, compared to enabling same-sex marriage via One Fell Supreme Court Swoop following this strategy would be hard, complicated, messy, and not a little unfair. It also does not grant same-sex marriage supporters the position that there is an underlying Constitutional right to same-sex marriage, mostly because there isn’t one in the first place*.

Does my saying so make you feel better?

*I am not demanding that a right be recognized; I am requesting that a privilege be extended. Which nicely eliminates the problems that the slippery-slope argument raises for my side, in my opinion: if people want to extend marriage privileges to other categories later they can start their own advocacy groups and get laws passed.

Crossposted to Moe Lane.