Part of why I support Olson and Boies' federal challenge to Prop 8 is because it's a bold offensive play. It's about time. For too many years now, the LGBT movement has been locked in a posture of defense or tepid offensive gestures. We've converted a few first downs, but we act as if the end zone is on another planet.
Check out this quote from "Make Change, Not Lawsuits," a document that a coalition of leading LGBT groups (i.e. the big ones) released last spring and updated last week:
"The fastest way to win the freedom to marry throughout America is by getting marriage through state courts (to show that fairness requires it) and state legislatures (to show that people support it). We need to start with states where we have the best odds of winning, and then ask Congress and the Executive Branch to end the federal government’s discrimination against same-sex couples. When we’ve won in a critical mass of states and have basic support in federal law and policy, we can turn to the federal courts and ask that the U.S. government end any remaining discrimination against LGBT people."
There are a few fundamental problems here.
First of all, anti-marriage amendments have already passed in 30 states, meaning that no matter the gains we make in the coming years, the other side will always have a majority of states on their side and thus a larger critical mass. Is there really a significant difference between going before the federal court when marriage is legal in five states, versus, say eight. I don't think so. Nor should we overlook the fact that the very organizations that took leadership roles on those 30 losing campaigns are now the ones calling for extreme caution in approaching the federal bench. They are not experts in campaign strategy and they are certainly not experts in Supreme Court behavior.
Second, this line of thinking is fine if you happen to live in one of those "winnable states." But what if you're a resident of one of the 30 states in which an anti-marriage amendment has passed. Like Mississippi, Missouri, Alabama, or Oklahoma. These are the places where our movement's attention and resources need to be focused.
The big ones call for incrementalism but they don't bear its burdens. The problem with incrementalism is that it prolongs injustice and thus suffering. Unnecessarily. Typically, those who favor this approach are at the head of the pack; those at the rear feel more urgency and are often willing to take more risks to create change. Incrementalism is code for trickle-down civil rights, as my friend April Barton puts it.
And this is where the LGBT movement may actually have a lot to learn from the global health sector's response to TB and AIDS. A bit of a leap, at first glance. But the connections are there to be made, especially if one believes that all of our fates are entangled, that all suffering and all liberation efforts are connected.
Until quite recently, the prevailing philosophy in global health policy was guided by a concept called "appropriate technology," which involved scaling back services and treatment protocols in the world's poorest regions. This too was a form of incremantalism. Experts from the World Health Organization determined, for example, that it was impossible to effectively treat TB and HIV in these communities and therefore, treatment should be withheld in order to preserve scarce resources. This "appropriate technologies" approach represented a type of triage; but it also perpetuated the worst kinds of disparity: People suffered and died unnecessarily.
It took a group of young physicians, led by Paul Farmer and Jim Kim of Partners in Health, to convince global health policy makers that they were wrong. Farmer and Kim, who have since been recognized as pioneers in their field, were at first greeted as heretics for suggesting that it was not only possible but also morally right to treat the world's poorest people with the same quality of care that the world's richest receive. They grounded their argument in clinical data which proved they could treat these conditions effectively in poor communities; and in moral terms, drawing upon liberation theology to argue for "a preferential option for the poor." It took them years to convince the powers that be to change policy, and called upon a blend of risk-taking, political acumen, good science and medicine, and willfulness.
That they did so changed the course of history and -- more importantly -- the lives and health outcomes of millions of people in the world's poorest communities. (This is a simplified version of a story told brilliantly by Tracy Kidder in the book Mountains Beyond Mountains.) Farmer and Kim were lucky to be working within a profession that values data and responds to it. Their peers might have at first argued with the premise of their work, but they could not argue with mounting clinical data. The data held a new version of the truth: that which had been thought impossible was in fact possible.
The LGBT movement does not -- currently -- give much credence to data. How else can we explain the rallying cry to try to repeal Prop 8 at the ballot in 2010 when our record at the ballot box is 1-30? Nor does the movement give much credence to innovation. How else can we explain running the "No on 8" campaign as if it was still 1996? These things are frustrating and they explain trends and inefficiencies on the organizational and strategic levels.
But what I cannot abide is a movement that does not prioritize, above all else, the reduction of suffering, especially for those who experience the most acute persecution. A preferential option for the poor also means a preferential option for the persecuted. Because at the end of the day that's what we're talking about when we talk about marriage and employment discrimination and hate crimes and UAFA and DADT. We're talking about real people's lives in every state in the nation. People who should not have to wait for incrementalism's slow crawl across the map.
Surely, Olson and Boies are motivated by factors beyond sheer altruism. It would be naive to think otherwise. And it would be naive to assume a federal victory is imminent or even highly likely. But risk in the name of reducing suffering and in the hands of highly skilled litigators is risk I can live with.
It's time for offense.
Comments