Obergefell et al v. Kasich et al

Filing 47

NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of Gary M. Segura (Attachments: # 1 Expert Declaration, # 2 Exhibit A, Segura CV, # 3 Exhibit B, Segura Sources) (Martin, Jacklyn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES OBERGEFELL, et al.
Plaintiffs,
v.
THEODORE WYMYSLO, et. al.,
Defendants.

:
:
:
:
:
:
:
:
:
:

Civil Action No. 1:13-cv-501
Judge Timothy S. Black
EXPERT DECLARATION OF GARY M.
SEGURA IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
DECLRATORY JUDGMENT AND
PERMENANT INJUNCTION

I, Gary M. Segura, Ph.D., pursuant to 28 U.S.C. §1746, hereby declare and state under
penalty of perjury that I am an adult over the age of 18 and am competent to testify to the
following matters if called as a witness and that these are my true and correct opinions:
PRELIMINARY STATEMENT
I.

Expert Background and Qualifications
1.

I am a Professor of American Politics in the Department of Political Science at

Stanford University. I have been retained by counsel for Plaintiffs as an expert in connection
with the above-referenced litigation. I have actual knowledge of the matters stated in this
declaration and could and would so testify if called as a witness. My background, experience
and list of publications from the last 10 years are summarized in my curriculum vitae, which is
attached as Exhibit A to this Declaration.
2.

In the past four years, I have testified as an expert—either at trial or through

declaration—or been deposed as an expert in Darby v. Orr, Nos. 12-CH-19718 and 12-CH19719 (Cir. Ct. of Cook County, Ill.), Windsor v. U.S., No. 10 Civ. 8435 (BSJ) (JCF) (S.D.N.Y.),
Dragovich v. U.S. Dep’t of the Treasury, CV 4:10-01564-CW (N.D. Cal.), Golinski v. Office of
Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), Perry v. Schwarzenegger, 704 F.
1

Supp. 2d 921 (N.D. Cal. 2010), Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass.
2010), Massachusetts v. United States HHS, 698 F. Supp. 2d 234 (D. Mass. 2010), Pedersen v.
Office of Personnel Management, No. 3:10-cv-01750-VLB (D. Conn.), Jackson v. Abercrombie,
Civ. No. 11-00734 ACK-KSC (D. Haw.), Cooper-Harris v. United States, CV 12-887 CBM
(AJWx), Sevcik v. Sandoval, No. 2:12-CV-00578-RCJ-PAL and Satorre v. San Mateo County
Board of Supervisors, CIV504866.
3.

I received a Ph.D. in American Politics and Political Philosophy from the

Department of Political Science at the University of Illinois in Urbana-Champaign in 1992. My
tertiary field of emphasis was political methodology. My MA was also from the University of
Illinois in 1990, and I earned my undergraduate degree from Loyola University of New Orleans
in 1985.
4.

I am also the founding Director of the Institute on the Politics of Inequality, Race

and Ethnicity at Stanford, and the founding co-Director of the Stanford Center for American
Democracy. In the latter role, I am one of the Principal Investigators of the American National
Election Studies for 2009-2013, the premier data-gathering project for scholars of American
elections.
5.

My primary emphases in my scholarly research and writing are on public

attitudes, opinion, and behavior with respect to politics, and minority group politics. I have
taught classes on elections, public opinion, representation, Congress, Latino politics, gay and
lesbian politics, race and racism, the Voting Rights Act, inequality and American democracy,
interest group politics, philosophy of science, research design, and statistical analysis
(introductory and advanced).
6.

To date, I have authored 49 article-length publications in professional journals

2

and edited volumes. Those journals include the American Political Science Review, the
American Journal of Political Science, Political Research Quarterly, Political Behavior, and the
Journal of Politics. I edited Diversity in Democracy: Minority Representation in the United
States, published by the University of Virginia Press in 2005. I am also the co-author of Latino
Lives in America: Making It Home, addressing new patterns of Latino life and politics in the
U.S., published by Temple University Press in 2010. I have a third book that was published in
2011 with Congressional Quarterly Press, entitled “The Future is Ours:” Minority Politics,
Political Behavior, and the Multiracial Era of American Politics, a comparative exploration of
political behavior across American racial and ethnic minority groups and how such behaviors
will shape American party coalitions in the coming decades. I am the co-author of a fourth book,
Latinos in the New Millennium: An Almanac of Opinion, Behavior, and Policy Preferences,
which was published in 2011..
7.

I am the former President of the Midwest Political Science Association (MPSA),

the second-largest organization of American political scientists. In 2006, I was the General
Program Chair of the MPSA Annual Meeting. In 2011, I was elected Vice-President and
Program Chair of the Western Political Science Association for 2012-2013, and will serve as
President in 2013-14. In addition, I am a member and former Executive Council Member of the
American Political Science Association, member and former Executive Council Member of the
Western Political Science Association, and member of the Southern Political Science
Association. I serve or have served on the editorial boards of the American Journal of Political
Science, Journal of Politics, and Political Research Quarterly. I am a member of the Sexuality
and Politics organized section of the American Political Science Association, have served on the

3

Southern Political Science Association’s Committee on the Status of Gays and Lesbians, and was
part of the Executive Committee of the Sexuality Studies Program at the University of Iowa.
8.

In preparing this declaration, I reviewed the Complaint in this case and the

materials listed in the attached list of sources (Exhibit B). I rely on those documents, in addition
to the documents specifically cited as supportive examples in particular sections of this
declaration, as support for my opinions. I have also relied on my years of experience in the field
of political science, as set out in my curriculum vitae (Exhibit A).
9.

I am being compensated for this effort at a rate of $250.00 per hour. I will be

compensated at $350.00 per hour for work performed while traveling, and I will be reimbursed
for expenses incurred while traveling in connection with my services. My compensation does
not depend on the outcome of this litigation, the opinions I express, or the testimony I provide.
II.

Summary of Conclusions
10.

Gay men and lesbians do not possess a meaningful degree of political power and

are politically vulnerable, relying almost exclusively on allies who are regularly shown to be
insufficiently strong or reliable to achieve their goals or protect their interests. The
powerlessness of gay men and lesbians is evidenced in numerous ways, and they are subject to
political exclusion and suffer political disabilities greater than other groups that have received
suspect classification protection from the courts.
III.

Political Powerlessness in General
11.

Any evaluation of the political power of a particular group in the United States, or

in any particular state, takes place in the context of a general understanding of the role that
groups play in American politics. From James Madison onward, American democracy
frequently has been understood as a pluralist system, in which competition among groups should

4

ideally ensure that no one interest becomes permanently dominant, or determines outcomes over
a large number of decisions over a long time. Madison believed that in an “extended” republic,
coalitions commanding the day on one issue would dissolve and be replaced by a different
majority coalition on the next issue.
12.

Modern political scientists generally approach pluralism through the concept of

group interests. In what David Truman calls “disturbance” theory, the action of one group raises
challenges to the interests of another, causing the latter to react, and preventing a single interest
from dominating the political process. However, scholarly work on collective action (including
Mancur Olson among others) has found that not all groups have an equal opportunity to form and
act successfully to stave off threats to their interests. Differences in group size, resources, and
position in the class structure mean that some groups are inherently better positioned to act on
their own behalf than others, and some groups suffer a permanent disadvantage that places them
at the mercy of others. Reflecting this concern, eminent political scientist Elmer Eric
Schattschneider famously wrote, “The flaw in the pluralist heaven is that the heavenly chorus
sings with a strong upper-class accent.” Those with greater resources—time, money, and
numbers—exert greater influence on the political process. Minorities, by definition, are less
numerous than the majority.
13.

The existence of societal prejudice against a particular group makes the

accumulation of resources, including finances and allies, more difficult. Moreover, that same
prejudice imposes an additional systematic burden because it tends to prevent that group’s
interests or policy preferences from receiving due consideration by other actors in the political
process, or causes that consideration to be sacrificed for the sake of political expediency.
Relative to minority groups that are otherwise similarly situated, a group that suffers such

5

prejudice does not receive an equivalent hearing in political contestation and debate.
Constitutions (and courts, through judicial review) play the role of the Madisonian corrective in
the pluralist system by protecting disadvantaged minorities from majoritarian excesses and from
effective exclusion from the political process.
14.

Political power refers to a person’s or group’s demonstrated ability to extract

favorable (or prevent unfavorable) policy outcomes from the political system. In a wellestablished and commonly cited definition, Robert Dahl wrote that A has power over B when A
is able to compel B to do something that B otherwise would not do. Thus, simple meetings of
the mind are insufficient to demonstrate the exercise of power. One does not have power over
those who, for other reasons, already agree. For example, in the last national election, millions
voted for the same candidate I did, but this is not evidence of my electoral influence.
15.

Power may also be reflected in the content of the political agenda, the issues that

are considered for legislative action. More powerful political actors face fewer legislative threats
to their interests than less powerful actors. The very circumstance of being forced to defend
interests against potential legislative action is a reflection of weakness rather than strength.
16.

Groups that lack political power may, on occasion, receive pledges of support, or

even desirable legislative outcomes, that they themselves lack the power to compel through the
political process. An elected official may arrive at a position on a policy or proposal for their
own reasons unrelated to the specific communicated preferences of the minority group’s
constituents.
17.

In some instances, the minority preferences may be entirely beside the point. For

example, an elected official may choose not to support a bill or policy proposal because he or she

6

may determine that the policy has implications adverse to other interests or because the costs of
implementation or enforcement of the policy are too great.
18.

Positive legislative outcomes may also be the result of “affinity” or sympathy

from legislators in a position to bestow them. An elected official may decide not to support a bill
or policy proposal that discriminates against, singles out, or mistreats a minority group because
he or she independently believes that discriminating against, singling out, or mistreating the
minority group is wrong. But since these pledges or outcomes are not the result of an exercise of
political power by the minority group, they are not necessarily indicative of a group’s actual
political power. Moreover, they are significantly more vulnerable to reversal than those
achieved through the exercise of actual power. The affinity or sympathy that gave rise to the
support could dissipate or flatten, and is likely to be abandoned in the face of subsequent
opposition, and in the absence of sufficient power and influence of the minority group to counter
opposition.
19.

For example, in the 2011 legislative debate over the legalization of marriage for

same-sex couples in the Maryland House of Delegates, several members of the chamber who had
co-sponsored the legislation—and even some who had solicited endorsements and donations
during the election cycle on this basis—ultimately voted against it in committee, publicly
announced their intention to vote against it on the floor, and subsequently did so. These
legislators’ apparent support in the earlier stage of the legislative process was costless, and
withered in the face of mobilized opposition and as an actual roll-call vote approached.
20.

Following Dahl’s understanding, power can be illustrated only in comparison to a

baseline understanding of the decision-makers’ preferred actions. That is, to demonstrate that
power had been at work, one would need to observe successful instances of opinion change on

7

the part of a legislator in the face of positive or negative sanction or, alternatively, electoral
change precipitated by the ire of the dissatisfied constituency.
21.

Apparent policy “agreement” is a particularly erroneous measure of power when

mere “agreement” requires no action on the part of the policy-maker. Again, the example of
candidates and officials endorsing a policy position, only to recant that support when an actual
vote approaches, illustrates the illusory nature of this form of support.
22.

My opinion does not rest on the extreme assumption that in no place, at no time,

under any circumstances, have gay men and lesbians won any outcome.
23.

Rather, my view is that one must weigh the relative impact of positive and

negative outcomes against the numerosity of moments of contestation and the insecure nature of
legislative gains. Policy “successes” should not be considered in isolation. While legislative
gains have occurred in some states and localities, numerous jurisdictions have adopted statutes
and constitutional amendments expressly in opposition to the interests of gay men and lesbians.
Even an assessment of “trend” requires consideration of the relative frequency of positive and
negative outcomes and the stakes involved in each of the policy debates.
24.

Policy successes—whether at the state or federal level—are insecure so long as

the rights and legal status of lesbians and gays remains a subject of legislative action. We must
consider the frequency with which legislative gains have been repealed, turned back by the
voters, or foregone altogether, as well as the serious risk of repeal of legislative gains after each
election cycle in which political power shifts to a different political party. Recent policy
modifications, such as the adoption of a mechanism that led to the end of the “Don’t Ask, Don’t
Tell” policy, illustrate precisely this dynamic. Several prospective Republican presidential
candidates who ran for office in the 2012 Republican primary expressed support for a repeal of

8

this legislation and the reinstatement of “Don’t Ask, Don’t Tell,” a view also shared by members
of the House majority. Reinstating Don’t Ask, Don’t Tell was an explicit plank in the 2012
Republican platform. Similarly, after the Maine legislature passed legislation in 2009 to provide
same-sex couples access to marriage, voters overturned the law a few months later by
referendum. The Washington and Maryland legislatures also enacted legislation last year to
allow same-sex couples to marry, but opponents of the legislation gathered sufficient signatures
to subject both measures to a referendum by popular vote in November 2012. Both referenda
failed, and Maine ultimately reinstated marriage for same-sex couples in another initiative, last
year. Those favorable results, however, should be examined against the broader backdrop: even
occasional political successes of gay men and lesbians are subject to repeated challenge at the
ballot box and, recent successes not withstanding, they lose an exceedingly high percentage of
the time.
25.

Even positive outcomes for gay men and lesbians that are secured through court

rulings are vulnerable to popular or legislative rollback. For example, in response to the Iowa
Supreme Court’s ruling that lesbians and gay men could not be excluded from the institution of
civil marriage, anti-gay forces like the National Organization for Marriage organized a nationally
funded campaign to defeat three of the members of that court in judicial retention elections in
November 2010, and were ultimately successful in defeating all three. Though a fourth removal
attempt was defeated 2012, the earlier defeat of state jurists facing retention elections has the
dual effect of weakening that court’s majority—raising the possibility of their reversing the
previous decision—as well as chilling similar action by jurists in other states whose judicial
views might otherwise lead them to similar conclusions.
26.

Furthermore, many of the policy “successes” that have benefitted gay men and

9

lesbians are measures that remediate or repeal express, de jure discrimination against the group.
Remediation of existing discrimination and disadvantage should be distinguished from
affirmative political power. For example, the adoption of hate crimes statutes inclusive of sexual
orientation, in Illinois and elsewhere, while a “success” for gay men and lesbians, was necessary
only because there is such prevalent bias-related violence against gay men and lesbians. While a
fair assessment of the relative political “power” of gay men and lesbians would include the
adoption of such legislation, it must also include a consideration of the underlying behavior and
bias that gave rise to the need for the legislation, which is an indicator of political powerlessness,
not strength.
27.

In light of the political disadvantages still faced by a small, targeted, and disliked

group, I conclude that gay men and lesbians are powerless to secure basic rights within the
normal political processes.
28.

Traditional markers of political powerlessness include systematic disadvantages

in the political process; the existence of significant prejudice, stigmatization, or de facto or de
jure second-class status; or an inability, alone or in concert with reliable coalition partners, to
secure basic rights or equal treatment from and within the political process. Here, I organize
traditional markers of political powerlessness into two categories: (1) manifestations of power
and powerlessness, on which gays and lesbians score poorly; and (2) factors that contribute to
political disadvantage, on which gays and lesbians—to their detriment—score high.
IV.

Political Powerlessness of Gays and Lesbians
A.

Manifestations of Political Powerlessness

29.

Although an exhaustive catalog is impossible, the lack of meaningful political

10

power possessed by gay men and lesbians is reflected in numerous features of the nation’s laws,
institutions, and political history that are adverse to policy outcomes favored by and important to
gay men and lesbians. Some examples are discussed below. The political powerlessness of gay
men and lesbians is evidenced by their inability to bring an end to pervasive prejudice and
discrimination, and to secure desired policy outcomes and prevent undesirable outcomes on
fundamental matters that closely and directly impact their lives. Furthermore, the demonstrated
vulnerability of occasional and geographically confined policy gains to reversal or repeal is
indicative of a role played by “affinity” or sympathy, rather than the exercise of meaningful
political power by gays and lesbians.
(1)
30.

Absence of Statutory Protection/Presence of De Jure Statutory
Inequality

To date, there is no federal legislation prohibiting discrimination against gay men

and lesbians in employment, education, access to public accommodations, or housing. Nor is
there any protection of this nature under Ohio law. Indeed, the history of the Employment NonDiscrimination Act (ENDA) provides a good example of gay men and lesbians’ inability to
compel policy outcomes for which they actively advocate. ENDA, which would extend
employment protections on the basis of sexual orientation (and in some versions, gender identity)
has been introduced regularly since 1994 (with earlier versions existing as far back as the 1970s),
but has never passed both houses of Congress. It has failed to win passage in both Republicanand Democratic-controlled Congresses. While the legislation attracts many “co-sponsors,” one
cannot test the reliability or strength of this support in the absence of a recent and meaningful
vote, or any realistic chance of its passage. The almost complete absence of legislative progress
on the issue suggests that, at the very least, it is not a legislative priority for most legislators or
the leadership of either party and, at worst, that the “support” is rhetorical and without substance.
11

31.

In 1996, Congress adopted the “Defense of Marriage Act,” or DOMA, which,

among other things, prevented even legally married same-sex couples from filing joint tax
returns, inheriting social security benefits, and obtaining all of the other rights afforded to
married individuals by federal law. This preclusion of rights acquisition was signed into law by
a Democratic president. Until recently, litigation against DOMA was actively resisted by both
Democratic and Republican administrations. Indeed, until February 2011, the Obama Justice
Department defended the constitutionality of DOMA despite the administration’s public support
for its legislative repeal. And the decision by the Department of Justice to cease its defense of
DOMA in court came only after one house of Congress passed into the control of the opposite
party, thus allowing that body the opportunity to intervene in the litigation. In short, it was a
change of course without immediate practical effect. The same is true for President Obama’s
and Vice President Biden’s announced personal support for the freedom to marry for same-sex
couples, and the addition of this position to the Democratic platform in 2012. Their personal
views and the platform have no practical effect on the exclusion from marriage faced by samesex couples across the country. More to the point, in no instance can we identify an effect of
lesbian and gay political power at work, here. Gay and lesbian voters were in no position to
insist on these changes, nor are they able to compel candidates across the party to abide by them.
Properly understood, they reflect affinity of the current President and the platform committee,
but not power.
32.

Ohio adopted a state level “DOMA” statute in 2004. It was adopted by huge

margins in both chambers. That same year Ohio voters passed a state constitutional DOMA
amendment, also by a wide margin. .

12

33.

Despite a long-documented record of violence against gay men and lesbians,

attempts to extend existing federal hate crimes to include violent crimes based on the perceived
sexual orientation of the victim reached fruition only in 2009, after more than a decade of
advocacy by civil rights groups and supporters. Previously, gays and lesbians enjoyed virtually
no such federal protection. The legislative process that produced even this positive outcome is
illustrative of the political powerlessness of gay men and lesbians. To provide political cover,
the bill extending hate crimes protections to gays and lesbians was attached to and adopted as
part of a Defense Appropriations Bill. Even under these circumstances, 75% of Republican
members of the Senate voted against it. In the House of Representatives, 131 of 175 Republican
members voting (again, 75%) also opposed the hate crimes provision, illustrating at once the
depth of opposition to even ameliorative measures that benefit gay men and lesbians, as well as
the fragility of the institutional support for such outcomes. It is again worth noting that the
impetus for this legislation was the pattern of violence directed at gay men and lesbians, a
circumstance that provides important context for why the adoption of such a provision need not
represent an exercise of “power.”
34.

In 1993, Congress codified the military’s “Don’t Ask, Don’t Tell” (DADT)

policy, under which lesbians and gay men were required to conceal their sexual orientation in
order to serve in the military, were investigated if suspected to be gay, and were discharged if
they disclosed or were found to be gay. Like the “Defense of Marriage Act,” this legislation was
signed by a Democratic president. In December 2010, Congress adopted a provision with an
administrative mechanism that led to the end of this policy. But the circumstances under which
even this positive outcome was achieved highlight the ultimate political powerlessness of gays
and lesbians. The DADT policy was in effect for over 17 years and, despite significant evidence

13

of abuse—including discharges initiated based on unsubstantiated allegations and third-party
accusations, and aggressive investigations beyond the bounds of the policy—and its cost to the
military, repeal had not seriously been considered. Both Republican and Democratic
administrations defended DADT in court. The current Democratic administration discouraged
legislative attempts to attach legislation repealing DADT to the Defense Authorization bill in the
summer of 2010, or indeed at any point prior to the November 2010 election. There was no
legislative action on the policy for most of the 111th Congress, beyond committee hearings, and
despite widespread shifts in public opinion on this issue, no final action was taken prior to the
general election. When the matter was finally taken up during the lame-duck session,
Republican members offered fierce opposition in both legislative chambers. Of 175 votes cast in
the House by Republican Party members, 160 (or 91.4%) were against the provision to repeal
DADT. In the Senate, 31 of 39 Republican senators (79.5%) opposed the repeal. Like the hate
crimes legislation, the DADT repeal illustrates the limited access gay men and lesbians have to
the legislative process because of such stalwart opposition.
35.

On the state level, there is no statutory protection against discrimination in

employment or public accommodations based on sexual orientation in twenty-nine states.
36.

While there is an executive order in place protecting state workers from

discrimination based on sexual orientation, at least five bills aimed at outlawing private
discrimination based on sexual orientation have failed in recent years in the Ohio legislature.
37.

De jure inequality also exists in state constitutional law. In 1990, there was not a

single state constitutional provision that targeted gay men and lesbians for unequal treatment.
Today, in over three-fifths of the states there is now constitutionally-established inequality—that
is, the exclusion of gay men and lesbians from the civil institution of marriage is formally written

14

into the framework of government. Indeed, voters in many states, like in Ohio, passed ballot
initiatives to amend their state constitutions to prohibit same-sex couples from marrying even
after the state legislature had already passed statutes barring same sex couples from marrying.
At least 10 additional states, affirmatively exclude gay men and lesbians from civil marriage by
statute but have not yet amended their constitutions.
38.

The presence of domestic partnership and civil union laws adopted in various

states, rather than viewed as an “accomplishment,” is best understood as an illustration of the
political weakness of gay and lesbian political efforts. These laws are enacted for one of two
reasons: either (1) civil marriage for same-sex couples is politically unattainable in a state, either
through the array of existing political forces or the presence of a constitutional bar—which also
illustrates the weakness of lesbian and gay politics—or (2) the enactment of a domestic
partnership or civil union law would have the effect of complying with a court order to address
gay and lesbian exclusion, as was the case when Vermont originally adopted civil unions.
Notably, in Vermont, the civil union law was the legislature’s way of not granting civil equality
to lesbian and gay citizens, despite a court order.
(2)
39.

Repeal or Pre-Emption of Legislative or Judicial Protections Through
Ballot Initiatives

Evidence from the past two decades in particular has demonstrated that gay men

and lesbians are especially vulnerable in the context of direct democracy. That is, positive
legislative outcomes achieved at the state and local levels are often insecure. Initiatives and
referenda frequently and effectively have been used to reverse or pre-empt the legislative grant at
the state or local levels of policies benefiting or protecting gays and lesbians. These ballot
initiatives can be broken into three groups: (1) those which overturn anti-discrimination policies,
(2) anti-marriage initiatives, and (3) restrictions on adoption.
15

40.

Overturning anti-discrimination policies—The first wave of ballot actions on gay

and lesbian rights began in the early 1970s, but reached its peak in the 1990s. The most common
form was citizen initiatives to overturn municipal, county, or state extensions of antidiscrimination policies to sexual orientation. These ballot actions were generally successful.
Legislative enactments were overturned in cities and counties across the country, including Santa
Clara County and the City of San Jose, California; Tacoma, Washington; Lewiston, Maine;
Lansing, Michigan; St. Paul, Minnesota; Wichita, Kansas; Cincinnati, Ohio, and perhaps most
famously, Miami-Dade County, Florida. A very small number of pro-gay votes also occurred
and, not surprisingly, did not fare as well, including the defeat of a voter attempt to compel the
Davis, California City Council to enact a gay rights ordinance. Haider-Markel and colleagues
(2007) identified 143 votes from the 1970s through 2005, and found that gay and lesbian rights
were defeated or overturned in more than 70% of the cases—with the opponents of those rights
prevailing at about the same rate for local and state elections. The frequency of electoral and
policy conflict over non-discrimination statutes declined once the focus of the struggle
increasingly centered on preventing legal recognition of same-sex couples’ relationships. It is
worth noting that many anti-gay measures amended city charters or state constitutions to increase
the burden on gays and lesbians and their supporters for accomplishing policy change, such as
Colorado’s Amendment 2, struck down by the Supreme Court in Romer v. Evans, 517 U.S. 620
(1996). The general approach of such measures was to prohibit legislative action preemptively,
and require that any change be through popular, majority vote (with all of the disadvantages for
minority rights this carries). Most recently, the state of Tennessee adopted a new “antidiscrimination” law in May of 2011 that specifically forbids any jurisdiction from enacting any
anti-discrimination measures that go beyond the protections in state law (which currently

16

excludes lesbians, gay men, bisexual and transgender people from all anti-discrimination
protections). As a result, Nashville’s two ordinances protecting gay men and lesbians from
workplace discrimination were rendered unenforceable. Similar measures are being advocated in
other state legislatures.
41.

Anti-marriage initiatives—In 2004 alone, ballot initiatives prohibiting marriage

for same-sex couples passed in 13 states. To date, gay and lesbian marriage prohibitions have
been voted on at the state level 38 times, most recently in North Carolina, Minnesota, and Maine
in 2012. In only two instances did the pro-gay position win. First, when Arizona’s Proposition
107, which also would have affected unmarried heterosexual couples, failed in 2006; the
constitutional amendment passed handily in 2008 when it was narrowed to affect only gay men
and lesbians. (Colorado, likewise, had multiple items, two competing anti-marriage initiatives
and one referendum. The harshest initiative, which would also have outlawed civil unions and
domestic partnership, failed to qualify for the ballot. On election day, the referendum, which
would have confined marriage to opposite-sex couples but award lesbian and gay couples
domestic partner rights failed, while the remaining anti-marriage initiative passed on the same
day.) In 2012, North Carolina adopted an anti-marriage amendment. Minnesota, in 2012,
provided the only other example of anti-gay forces failing to write inequality into the state’s
constitution.
42.

In Maine, the state legislature managed to adopt marriage for same-sex couples

through statute. That policy success was short lived, as a popular majority was able to overturn
legislative action and reinstate the ban on marriage between same-sex couples through statewide
ballot on “Question 1.” This outcome was secured with massive intervention from national antigay organizations, such as the National Organization for Marriage, as well as substantial

17

investment by religious organizations, including the Roman Catholic Church, whose role was
documented and touted in Catholic media sources. Campaign materials used by interests
opposing the freedom to marry were, in some instances, identical to those used in the campaign
to repeal marriage for same-sex couples in California via Proposition 8, illustrating the vast and
national reach of those interests working against the interests of gay men and lesbians. This
year, that change was overturned with a new initiative. But the lesson, that gay and lesbian
political equality is subject to repeated challenge and popular repeal, remains.
43.

Adoption—In five states, gay men and lesbians are prohibited from adopting

children. Some of these bans were adopted recently. For example, in 2008, Arkansas voters
adopted Arkansas’ Act One, which prohibited adoption by unmarried cohabitating couples, an
act conceived with regard to—and targeted at—same-sex couples. Act One was struck down in
April 2011 as an unconstitutional infringement on the right to privacy by the Arkansas Supreme
Court. That decision notwithstanding, it is possible, and I think likely, that these initiatives or
legislative actions will appear elsewhere in the future. Indeed, Arizona recently enacted a
statutory preference for heterosexuals in the state’s foster and adoption programs. In the 2012
American National Election Study, 35.8% of respondents nationwide felt that gay men and
lesbians should be prohibited from adopting.
44.

Thus, beyond the obstacles gay men and lesbians face in the traditional legislative

process, ballot initiatives further disadvantage them politically and have undone many of the
benefits they have obtained through legislative action. The success of anti-gay ballot initiatives,
moreover, makes it less likely that legislatures will enact pro-gay policies in the first place (Lax
and Phillips 2009), because elected officials will fear having their actions overturned by angry
constituents. Moreover, many gay and lesbian activists fear that the reactive post-initiative

18

policies will be worse than the status quo, thereby forcing them to consider whether foregoing
legislative policy change in the first instance is actually in the best interests of the group. For
example, several successful anti-marriage ballot initiatives also prohibited civil unions and
domestic partnerships, removing benefits that had existed prior to the enactment of the anti-gay
ballot initiatives.
45.

Ballot initiative campaigns are frequently polarizing, are built on enormous sums

of money, and are waged primarily in the non-deliberative media of mass advertising. Small
minorities are even less able to protect their interests in these kinds of contests than they are in
the legislative process, which—as a result of legislative districts, institutional rules, coalitional
politics, and other factors—tends to give smaller minorities more of an opportunity to prevent
undesirable outcomes. The passage of Proposition 8 in California and Question 1 in Maine both
illustrate that coalition politics are more easily broken down in popular vote situations where
misleading messages can circumvent community leaders and office holders.
46.

Although the use of the initiative process against gay and lesbian policy goals is a

comparatively recent phenomenon, in the past, ballot initiatives were used to undo legislative
gains by immigrants, non-English speakers, African Americans, and minorities generally,
including overturning fair housing statutes, affirmative action programs, and bilingual education,
and establishing English as an official language. Historians of the turn-of-the-century
progressive movement, when these direct democracy processes were established and written into
the laws of the western states, note the association of progressive reforms with anti-immigrant
sentiment (among other factors). Indeed, the progressive movement created the initiative process
in order to allow the majority to overturn decisions made by legislatures, which allow a greater

19

role for bargaining and coalitional politics. But the initiative process has now been used
specifically against gay men and lesbians more than against any other social group.
47.

While there has been an increase in state and local jurisdictions with statutory

anti-discrimination protections for gay men and lesbians over the last two decades, these
legislative successes have been resisted strongly at the ballot box. Again, in three-fifths of the 50
states, voters have amended their state constitutions to establish formal political and social
inequality for gays and lesbians. Similar proposals to amend the federal constitution have also
been considered.
(3)
48.

Underrepresentation in Political Office

Gay elected officials have risen to various offices around the country. These

representatives may strive to advocate for gay and lesbian rights, but their numbers and limited
legislative impact on issues concerning those rights continue to demonstrate significant underrepresentation and reliance on friendly, heterosexual representatives, over whom gay men and
lesbians hold no direct political power. For example, 85 state legislators nationwide are openly
gay, but the total number of state legislators nationwide is 7,382, so those 85 legislators represent
only 1.2% of the total. A recent study by the Williams Institute estimated the gay, lesbian and
bisexual population of the U.S. to be approximately 3.5%. Under even the most conservative
estimates of gay and lesbian population share, this number indicates that gays and lesbians are
substantially under-represented. Prior to 1990, only four openly gay men or lesbians were
members of state legislatures.
49.

There have been only 11 openly gay or bisexual members of Congress in history,

and only eight total, seven in the House and one in the Senate, serve today (1.6% of the House,
1% of the Senate). Four of those eleven were initially elected to the House with their sexual

20

orientation not publicly known. Only seven members were first elected to the House without the
benefits of incumbency and with widespread public familiarity with their sexual orientation,
Jared Polis (D-CO), Tammy Baldwin (D-WI), David Cicilline (D-RI), Mark Pocan (D-WI), Sean
Patrick Maloney (D-NY), Mark Takano (D-CA) and Kyrsten Sinema (D-AZ). Polis, Baldwin,
and Pocan were elected in districts that are home to the flagship campus of their state
universities—districts that are typically more tolerant than others in the state. Baldwin and
Pocan were elected from the same district. Tammy Baldwin (D-WI) was elected to the Senate in
2012, the first openly-gay member of that body in the history of the republic. Gay and lesbian
politicians are largely confined to a single political party. Gay Republicans face an extremely
difficult time, and the few gay GOP elected officials who have emerged seldom last, most
leaving power either through primary challenges or retirement in the face of pressure. There has
never been an openly gay President, Cabinet level appointee, or Justice of the United States
Supreme Court.
50.

The percentages of gay and lesbian representation at the local level are lower still.

In 2010, the Gay and Lesbian Leadership Institute identified 288 local elected gay or lesbian
political officials serving on city councils, county commissions, school boards, and other local
offices (http://www.glli.org/out_officials), which is an insignificant fraction of the total number
of elected local officials. Over a decade ago, the Census Bureau reported that the number of
elected officials nationwide was slightly over 511,000. Subtracting members of Congress and
state legislatures, about whom I just reported, that leaves somewhat over 500,000 city, county,
school, and local board officials, and only 288 (or .05%) were identified as openly gay. These
officials are also concentrated in the coastal states and in Illinois. Some states have no openlygay elected officials at all, and many more have just a very small handful.

21

51.

In Ohio specifically, only two members of the state’s legislature, which consists

of a total of 132 members divided across two chambers (99 House of Representatives; 33
Senate), identify as gay or lesbian, constituting just 1.5% of the total. Both serve in the lower
chamber, as there are no openly gay or lesbian members of the Ohio Senate.
B.

Factors Contributing to Political Powerlessness

52.

Numerous factors, often working in combination or in mutually reinforcing ways,

contribute to the political powerlessness of gay men and lesbians. Furthermore, many of these
factors—including public and political hostility, prejudice, censorship, and religious and moral
condemnation—impose a political disability on gays and lesbians not suffered by groups of
comparable size and geographic dispersion. I begin this section with demographic
considerations and then discuss other, relational factors pointing to a degree of powerlessness
that today is unique to gays and lesbians.
(1)
53.

Small Population Size and Geographic Dispersion

The simplest way to secure political representation and exercise some degree of

influence over the political process is through numerical strength. The population strength of
gay men and lesbians is not close to being sufficient to obtain electoral predominance in a single
jurisdiction, let alone change the composition of a legislature or Congress. There are no
congressional districts with a majority population of gay and lesbian Americans. There are no
municipalities of any size with a majority gay and lesbian population. Even in broadly identified
gay-friendly communities, often places where migration to established lesbian and gay
communities has significantly increased the gay population above the national average, gays and
lesbians fail to reach majority status. A fair estimation of population suggests that gay men and
lesbians have sufficient numbers to determine (or substantially influence) the outcome of only a

22

few city council or county board seats, or state legislative districts, nationwide. At any level of
aggregation above the precinct or neighborhood, there is no place with a gay majority.
(2)
54.

Effect of HIV/AIDS Epidemic

The AIDS epidemic has set back the gay community’s potential for political

action, in ways that are both obvious and not obvious. Through 2005, the Centers for Disease
Control reported that just over 300,000 MSMs (a CDC term for men who have sex with men)
had died of HIV/AIDS. Another 217,000 were living with AIDS. The loss of 300,000 potential
voters, organizers, and leaders is a profound setback to a community whose population starts as a
fairly small share of the society. Harder to calculate are the lost financial contributions to the
political efforts of gay men and lesbians as a consequence of this epidemic. Gay men and
lesbians have both raised substantial amounts of money for HIV-related research and social
services, diverting resources that could otherwise be used to fight discrimination. Further, gay
net wealth is negatively impacted by the loss of income on the part of those who have died, and
the partial loss of income and expenditures on healthcare from those still living with the disease.
Some political observers suggest that a decade or more of gay activism was lost to the cause of
gay equality as gay men and lesbians turned their attention to the more immediate threat of the
epidemic. While gay men and lesbians do not have the resources—reliable allies, elected
officials, votes, dollars, and organizational capacity—to be politically powerful, they have been
further disadvantaged by the fact that HIV destroyed such a large segment of the community and
consumed such a large portion of its resources. In addition to the direct resource and political
costs, AIDS offered heterosexuals a new reason to stigmatize gay people and same-sex relations,
and to resist political change that would have advanced gay equality.
(3)

Violence

23

55.

A crime can be classified as a hate crime when the victim is targeted because of

his or her identity—generally race, ethnicity, religious identity, gender, sexual orientation, or
disability status. Hate crimes are unique in that the effects of the crime are understood—indeed
intended—to reach beyond the person of the actual victim. The crime is best understood as an
expression of animus toward an entire group, and is an attempt to intimidate other members of
that group or otherwise constrain their future behavior. For example, racially motivated hate
crimes against individual target-group-members can simultaneously express racial prejudice
toward the individual, an entire group, and intimidate other group members from patronizing
businesses, moving to neighborhoods, enrolling in schools, or otherwise exercising their personal
liberties.
56.

Though broad federal hate crimes protections for gays and lesbians came into

existence only recently, the FBI has collected data on hate crimes committed on the basis of
perceived sexual orientation for a number of years, at least from jurisdictions that have chosen to
report them, and the numbers are substantial. In the last year for which statistics have been
published, 2009, the total number of hate crime incidents was 6,604, and 1,482 (17.8%) of those
were on the basis of sexual orientation. In terms of single groups, only African Americans
endured more incidents, and since they are roughly three times the population share as gays and
lesbians, the likelihood that any given gay or lesbian citizen experiences an attack (that is, the per
capita number of attacks) is considerably higher.
57.

Reported hate crime incidents range from simple assault to murder. According

to the FBI’s statistics, in 2008, 73 percent of all hate crimes committed against gays and lesbians
included an act of violence; 71 percent of all hate-motivated murders in the United States were of
gay men and lesbians; and 55 percent of all hate-motivated rapes were against gays and lesbians.

24

58.

FBI Hate Crimes reports for 2009 show that gay men, along with Jewish

Americans, are the most likely to be victimized by a bias crime. The Southern Poverty Law
Center (“SPLC” ) also suggests that steps forward in the cause of gay and lesbian equality seem
to be associated with a subsequent surge in antigay violence, pointing to data immediately in the
wake of the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003), in which the
Court struck down Texas’ sodomy law. The intimidation effect of hate crimes serves to
undermine the mobilization of gays and lesbians and their allies and to limit their free exercise of
simple economic and social liberties.
59.

Recent years show no discernible decline in bias crimes against gays and lesbians.

FBI statistics reporting the number of hate crimes against specific groups shows that anti-gay
acts were as frequent in 2009 as they were in 2003.
60.

In Ohio, specifically, the numbers from the 2009 report are very similar. Of the

297 total hate crime incidents reported, 47, or 15.8% of the total, were identified as motivated
from sexual orientation. The 2011 report indicates that 58 out of 228, or 25% of the total, were
identified as motivated from sexual orientation. While the total number of hate incidents
reported declined, the number of hate incidents motivated by sexual orientation increased, and by
extension raising their share of the total.
(4)
61.

Invisibility

A unique aspect of gay and lesbian identity that distinguishes gays and lesbians

from other minority groups—to their political disadvantage—is their relative invisibility. The
scholarship on passing and self-identification suggests that members of repressed or targeted
groups who have the ability to pass unobserved in the majority population may choose to do so if
the costs of self-identification, in the form of family disapproval, physical threat, discrimination,

25

and their consequences, can be avoided. While this strategy avoids some risks of identification,
passing itself has a personal and a political cost.
62.

The unwillingness to identify has several important implications for the question

of whether gay men and lesbians can meaningfully or effectively act on their own behalf
politically. While not a panacea, social contact with gay men and lesbians is generally associated
with more sympathetic policy preferences. Invisibility undermines community support.
63.

Mobilization levels among gay men and lesbians is lower than other groups but

is erroneously perceived to be higher. Mobilization can reasonably be understood to be an act of
self-identification, so those choosing to pass have foreclosed visible political action.
64.

Since not all gay men and lesbians come out, the percentage of the gay and

lesbian population that is mobilized seems higher than it really is. Likewise, since those gay and
lesbian citizens who choose to self-identify are those whose economic and social position in
society is more secure—thereby lessening the risks of coming out—the resulting self-selection
bias results in a misperception of gays and lesbians as better educated, of higher income, and
otherwise “privileged.” This leads the public to believe—mistakenly—that gay men and
lesbians do not need of certain protections.
65.

The public perception that gay men and lesbians are better educated or have

higher incomes is not accurate. Statistically, gays and lesbians do not have higher levels of
income and, when all gay men and lesbians are considered rather than only the self-identified,
are no better educated then the public at-large. My analysis of the 2004 National Exit Polls
demonstrates no difference between heterosexual voters and gay and lesbian voters on income
and education.

26

66.

Opponents characterize the efforts of gay men and lesbians to gain statutory

protection as both unjustified and transgressive. Moreover, the public incorrectly perceives that
gay men and lesbians are more privileged than they actually are. This misperception both
mobilizes opponents and encourages complacency by potential allies.
67.

In addition, the fact that sexual orientation is not directly visible may reduce the

group’s ability to attract allies. Potential heterosexual allies may reasonably fear being
misidentified as gay or lesbian, reducing the chance that they will mobilize on behalf of gays and
lesbians. The National Coalition of Anti-Violence Programs reported in 2008 that 9% of hatecrimes reported to their participating agencies on the basis of perceived sexual orientation
victimize heterosexuals misidentified as gay or lesbian.
68.

Finally, invisibility exacerbates the problem of geographic and social dispersion,

making it more difficult for gay men and lesbians to find each other and mobilize politically.
(5)
69.

Censorship

In a variety of ways, gay men and lesbians are pressured to remain invisible, and

in several contexts, discussion of gay people and their relationships is prohibited or regulated.
Examples include the military’s long-standing and only recently repealed “Don’t Ask, Don’t
Tell” policy; legislation that prevented the National Endowment of the Arts from funding any art
depicting homoeroticism; rules that have prohibited federally funded AIDS education materials
from “promoting” homosexuality and requiring educators to advocate for abstinence from
extramarital sex, including same-sex couples’ intimacy; and efforts in several states to forbid the
mention of homosexuality in school health classes, or mandate the association of the term with
descriptors suggesting that it is not acceptable. In 2011, Tennessee considered legislation
banning the mention or discussion of homosexuality in primary grades, and Missouri has

27

considered a similar bill. And, Arizona, for example, prohibits any mention that same-sex
intimacy could be made “safe.”
(6)
70.

Public Hostility and Prejudice

Gay men and lesbians face severe hostility from non-gay citizens in many parts of

the country, and opinion data suggest that they are held in considerably lower regard than many
groups currently receiving the protection of heightened scrutiny from the courts. Such low
public regard makes it difficult for gay people to achieve significant political progress, implicitly
justifies legislative and electoral actions against gay men and lesbians, and severely hampers
their ability to attract donors, allies, coalition partners, or even public sympathy.
71.

In each national election year, the American National Election Study (available at

electionstudies.org or the Inter-university Consortium for Political and Social Research website)
asks a representative sample of American citizens to gauge their “warmness” toward a particular
group. Political scientists call this instrument a “feeling thermometer” and the scale of each
ranges from 0 to 100, with 100 indicating strong warmness/fondness/positive views.
72.

Examining the 2012 study, for Hispanics, approximately 35.8% of respondents

rated their warmness at 50 (midpoint) or less, and the average temperature was 63.5
(std.dev.22.5). For African Americans, only 34.4% of respondents were at or below 50, and the
mean temperature was 64.9 (std.dev. 22.1). For Catholics, 42.9% were at or below the mid-point
and the mean temperature was 60.1(std.dev 23.9). What is revealing about these summary
numbers is their similarity. They do vary, of course, but the percentage below the mid-point all
group between 34 and 43%, the means of each group is between 60 and 65 degrees on the
“thermometer,” and the standard deviations (a statistical score that calculates how spread apart

28

the responses are around the mean) are between 22 and 24, indicating majority positive
perception of each of these groups..
73.

By contrast, gay men and lesbians fare far worse. Fully 60.6% of respondents

rated gays at or below the mid-point of 50 and the mean temperature response was 51.6 (std.dev
27.8), indicating that a majority of respondents do not perceive gay men and lesbians positively.
Three-fifths of the respondents rate gays and lesbians at or below the mid-point, which is almost
twice that for African Americans and substantially higher than for the other groups. The mean
sentiment towards gay men and lesbians is 12 points lower than for Hispanics, and 13 points
lower than for African Americans. The standard deviation is also instructive, since its size
(larger than for the other groups) illustrates the level of polarization in sentiment about gay men
and lesbians.
74.

The following chart is illustrative of this point:

37.

29

75.

The trend in “warmness” toward gay men and lesbians has been

positive over the last several decades (as it has, in fact, for many groups in society).
Notwithstanding that trend, the relative placement of gay men and lesbians vis-à-vis other “outgroups” in society suggest that public esteem remains a significant obstacle to political progress.
By any estimation, the public is less fond of gay and lesbian Americans than racial and ethnic
minorities and religious groups. In fact, the other groups with comparable levels of coolness
include Muslims (mean=50.3), atheists (mean=41), and undocumented aliens (mean=39.3). It is
revealing that 13.4% of respondents gave gay men and lesbians a score of zero, a percentage
exceeded only by scores for undocumented immigrants (15.4%) and atheists (18.6%).
(7)
76.

Political and Social Hostility

Gay men and lesbians face outspoken denunciation by elected officials in a

manner that would be unthinkable if directed toward almost any other social group. Hostility by
public officials is often directly mirrored in the population. Furthermore, its public nature, even
when articulated by only a small segment of office-holders and officials, serves as a signal to the
broader population that these discriminatory attitudes are “acceptable” or reasonable within the
bounds of mainstream political discourse.
77.

Gay men and lesbians have been described by a sitting U.S. Senator as “the

greatest threat to our freedom that we face today.” Another sitting senator, during his successful
campaign, openly called for gay men and lesbians to be banned from the classroom, a claim he
repeated at a public rally. A third senator compared same-sex marriage to marrying “a box
turtle.” He was subsequently reelected with a large margin. Same-sex intimacy has been
described by a sitting senator as morally equivalent to incest and bestiality. In 2010, the GOP
nominee for governor of New York responded to a question about marriage for same-sex couples

30

by saying that “we should stop pandering to pornographers and perverts.…” The social and
political disadvantage that flows from these very public and derisive comments is palpable.
79.

While there may be pockets of tolerance here or there at the state and local levels,

and occasionally successful gay or lesbian candidates, in large swaths of the nation, political
condemnations of gay men and lesbians are not electorally costly and may even be used to gain
electoral support. It is difficult to identify many cases where an elected official was so damaged
by holding anti-gay positions that he or she lost public office on this basis, but there are countless
cases across the country where candidates felt advantaged by taking a particularly harsh anti-gay
viewpoint. In part, this is a consequence of the partisan and geographic distribution of views and
the nature of our legislative representation regime, but in part this is also a reflection of the fact
that pro-gay policies are a very low priority even among “allies” in the population who hold
generally positive views. Public contempt extends beyond elected officials to prominent national
religious leaders, who command the attention of political leaders as well as significant numbers
of the electorate.
(8)
80.

Unreliable Allies

The structure of the American party system is such that the path to pro-LGBT

equality policy change lies almost exclusively through the actions of one party. The increasing
power of evangelical Christians and self-styled “Tea Party” advocates in the GOP has shifted this
party’s social policy further to the right and all but eliminated its once sizable tradition of
libertarianism. Many within the Republican Party in office (and the national Republican
platform) are openly hostile to gay and lesbian rights. The nearly complete disinterest of one
party severely disadvantages gay men and lesbians, since gay men and lesbians can thus be
understood as “captured” by the Democratic Party, that is, unlikely to bolt from the party or

31

abstain from voting for it in large numbers. Under these circumstances, the capturing party can
take the political support of the group for granted.
81.

Although the Democratic Party is more supportive in its rhetoric, and the

Democratic platform speaks favorably regarding equality for lesbians and gay men, Democrats
have repeatedly shrunk from any extension of rights to gay men and lesbians at the federal level.
Democrats controlled the White House from 1993 to 2001, and the Congress until 1994 and from
2006 to 2010. Nevertheless, nondiscrimination statutes and federal recognition of statesanctioned marriages between same-sex couples remain undelivered. Again, “Don’t Ask, Don’t
Tell” was passed in a Democratically controlled Congress, and both it and the federal “Defense
of Marriage Act” were signed into law by a Democratic president.
82.

This is not to say that gay men and lesbians have no allies at all. Recently , the

governors of New York, Maryland, Minnesota and Washington signed marriage bills into law.
In the case of Washington State, the governor was not seeking reelection, but both other
governors have future political aspirations. Their assistance weighs positively on my assessment
of political resources of gays and lesbians. Their support, however, must be weighed against the
vast majority of state governors, however, who offer no such support—costly or cost-free—or
offer direct opposition to the political and social aspirations of gays and lesbians.
83.

Gay men and lesbians are disadvantaged by the circumstance of party capture.

The almost complete indifference or hostility of Republican elected officials to the political
interest of gay men and lesbians largely confines their political opportunities for support and
public office to a single party, the Democrats. Democratic leaders, mindful of this complete
exclusion, are thus free to neglect and even occasionally set back gay and lesbian interests,
secure in the knowledge that the other party does not represent a credible threat for peeling away

32

voters. Gay men and lesbians may be disenchanted with the quality and intensity of
representation they appear to receive from Democratic office-holders but, in a practical sense,
have no alternative. Taken together, Republican hostility and Democratic capture significantly
weaken the political voice of lesbians and gay men.
(9)
84.

Moral and Political Condemnation

While the pluralist framework envisions shifting majorities and rotation in office,

perceived Old Testament prohibitions of homosexuality serve to create, in many of America’s
religious communities, a permanent majority that believes same-sex intimacy is sinful and
immoral, and that it should be condemned and discouraged. The General Social Survey
(http://www.norc.org/GSS+Website/) regularly asks a representative sample of Americans to
evaluate whether homosexual relations are “wrong.” In 2008, those data show that 51.5% of
Americans still report that sex between two persons of the same sex is “always wrong,” while
another 10.3% agree that it is “sometimes” or “almost always” wrong. Moreover, the shift in the
direction of tolerance is neither large nor rapid. A decade ago, a module from the same survey
showed comparable numbers, at 56% and 11.8% respectively.
(10)
85.

Powerful, Numerous, and Well-Funded Opposition

The moral condemnation of homosexual acts fuels and supports political

opposition to protections and benefits for gays and lesbians. Campbell and Robinson (2007)
found that opposition to marriages between same-sex couples united leadership and core
believers across religious traditions. Similarly, the San Francisco Chronicle reported that the
campaign in favor of Proposition 8 was conceived and funded by a cooperative effort of the
Roman Catholic Archbishop of San Francisco and the senior leadership of the Mormon Church.
These reports were supported by documentary evidence and testimony introduced in the Perry v.

33

Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), trial in the Northern District of
California, in particular evidence of interstate coordination and fundraising within and between
global religious organizations. The biennial campaigns to pass Nevada’s constitutional
amendment prohibiting marriage for same-sex couples also received significant support from a
number of churches, including the Mormon Church, which used its infrastructure to organize
voters and solicit campaign donations from church members. Churches provide a well-funded,
widely spread, untaxed medium in which individuals opposed to gay and lesbian policy goals
can disseminate political messages and campaign materials, as well as engage in fundraising.
Moreover, national religious organizations like Focus on the Family, the Traditional Values
Coalition, the Family Research Council, the National Organization for Marriage and other
groups provide a national network for pressuring elected officials, fundraising, message testing,
media dissemination and publication, mobilization, and coordination across states and
jurisdictions. This nationwide coordination, for example, explains how 13 statewide initiatives
(including Ohio) concerning marriage for people in same-sex relationships appeared in a single
year, 2004. Similarly, the coordination of campaigns from California to Maine illustrates the
national nature of these efforts. Cahill (2007) documents the vast economic resources of these
organizations and their willingness to provide them to political efforts to prevent or reverse
rights, benefits, or protections for gay men and lesbians. Gay men and lesbians lack the political
resources—including voting numbers, cash, elected officials from the group, reliable allies,
reach, or a favorable political opportunity structure—to counter this kind of committed,
organized opposition to their interests.
86.

When scientific and learned societies have concluded that there is no evidentiary

or scientific bases to justify anti-gay biases or policies—whether with respect to same-sex

34

relationships or in evaluating gay men and lesbians as parents, as healthy, productive members of
society, and so forth—forces opposed to their political and social incorporation have formed
splinter or shadow organizations designed to give the appearance of scientific approval to
positions without broad scientific and professional support. For example, the American
Psychological Association long ago removed homosexuality from their diagnostic manual as a
psychologically disordered behavior, as the consensus in psychological research is that there is
little or no psycho-pathology associated with homosexual identity. Nevertheless, anti-gay forces
have founded the National Association of Research and Therapy for Homosexuality (NARTH),
which promotes efforts to change sexual orientation even though virtually all major mental
health professional organizations have adopted policy statements warning professionals and the
public about these treatments. Likewise, the American Academy of Pediatrics has been publicly
supportive of gay and lesbian parenting, and states on their website that “A growing body of
scientific literature reveals that children who grow up with one or two gay and/or lesbian parents
will develop emotionally, cognitively, socially, and sexually as well as children whose parents
are heterosexual.” In response, anti-gay activists have established the “American College of
Pediatricians” which, despite their name, is actually an anti-gay organization with a fraction of
the Academy’s membership and no scientific or professional standing. These non-mainstream
organizations, with names designed to evoke a false sense of scientific authority, exist
principally to discredit the scientific consensus regarding gay people, unquestionably weakening
their political power.
V.

Comparative Political Powerlessness
87.

Gays and lesbians suffer an extreme degree of political vulnerability and

35

powerlessness compared to most other groups in society. Even groups that have obtained the
protection of heightened scrutiny from the Supreme Court possessed greater political power at
the time those decisions were handed down than gays and lesbians do today. It is important to
note that, at the time other groups were granted heightened scrutiny, they enjoyed a variety of
constitutional and statutory protections that were not deemed adequate to the job of securing
their basic liberties and did not, alone, demonstrate sufficient political power to make suspect
class status unnecessary. Such is the case with lesbians and gay men. While they enjoy some
statutory protections in some jurisdictions, they enjoy explicit constitutional protections in none,
and face statutory and constitutional disadvantages in many.
A.

Gender

88.

When the Supreme Court held that sex was a quasi-suspect classification in the

1970s, they were in a far superior political position compared to that held by lesbians and gays
today. Women are and were a majority of the population and, if they so choose, could
theoretically determine most political outcomes. While women do not have the same level of
political cohesion as many other groups, so that in many cases their majority status has not
proved decisive, the magnitude of their numbers is a source of potential power that politicians
cannot ignore. And in fact, by the time of the recognition of sex as a quasi-suspect classification
by the Court, women had achieved important victories in the political process, including the
1963 Equal Pay Act, coverage in the 1964 Civil Rights Act and its subsequent amendments, and
specific statutory and constitutional protection in several states.
89.

Women have a number of other characteristics that enhanced their ability to

organize and act politically when compared with gays and lesbians. While sexism certainly
existed (and still exists), and political activism could be costly, identity as a woman was not

36

socially controversial, did not attract familial scorn, and did not bar one from such a large range
of social institutions, though some institutions were exclusively male. Women could freely
identify one another, gather, coordinate, and act largely free of fear of repressive tactics. Both
political parties sought the support of women.
B.
90.

Race

Immediately in the wake of the Civil War, three amendments to the federal

constitution established de jure legal equality for African-Americans and officially barred states
from violating equal protection. Though this guarantee of equality had seldom been
meaningfully enforced, it was nonetheless a de jure status superior to that now held by lesbians
and gay men. In addition, as early as 1941, President Roosevelt issued Executive Order 8802
prohibiting race discrimination in contracting and employment in companies doing business with
the U.S. In April of 2012, President Obama declined to sign an executive order barring sexual
orientation discrimination among federal contractors. Through court action and the social
movement of the 1950s and 1960s, African Americans (and later Latinos) achieved a rollback of
Jim Crow segregation laws and established a statutory regime of equality in employment,
education, and housing. Again, this was more promise than practice, but it was a statutory
circumstance superior to that of lesbians and gay men today.
91.

In the 1940s and 1950s, African Americans and other racial and ethnic minorities

had similar disadvantages to gays in terms of resources and social sanction, but with far greater
numbers (and in some instances majorities), they have been able to claim a more meaningful
share of political representation and policy responsiveness. Even before the passage of the Civil
Rights Act of 1964 and Voting Rights Act of 1965, there were 5 black members of Congress and
over 100 elected officials nationwide. Today, 73 people of color serve in the House of

37

Representatives. African Americans, Latinos, and Asian Americans have been elected governors
and big city mayors. They form outright majorities in dozens of jurisdictions and approximately
60 House districts through the last census. Rather than serve as an impediment, most (though
admittedly not all) religious institutions express support for the principle of racial equality and
the church in minority communities, rather than serving as an impediment to political progress, is
a locus for identification and mobilization. In terms of social support for the general principle of
equal treatment under the law, racial and ethnic minorities enjoy at least the public commitment
of most institutions, elected officials and citizens, in sharp contrast to that of lesbians and gay
men.

Signed under penalty of perjury this 9th day of October, 2013.

__________________________________
Gary M. Segura, Ph.D.

38