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Marriage Equality In the South: An Analysis and a Strategy

This item by TDS Contributor Rev. Jasmine Beach-Ferrara, Executive Director of the Campaign for Southern Equality, is the latest in a series of memos she has written for TDS on LGBT political strategy.

As a gay Christian minister leading a grassroots LGBT rights organization in North Carolina, I have daily occasion to consider the underdog's position.

We are now almost three months out from the passage of Amendment One, a far-reaching state constitutional amendment that in its vague language appears to ban marriage equality, civil unions and domestic partnerships. Ultimately the courts will need to weigh in on its actual meaning.

Although a sucker punch, Amendment One's passage was neither surprising nor particularly revealing. This was always the most likely outcome based on months of polling that showed us down by a wide margin. But precedent also suggested this outcome: we have now lost in all 32 states that have had marriage equality measures on the ballot since 1998. The passage of Amendment One reinforced what has been brutally evident for years: the current playbook - which involves rebuilding campaign infrastructure anew in each state, allocating insufficient resources to and relying on outdated technologies in field operations, and, in messaging, tip-toeing around the elephant in the room of displaying actual LGBT lives - isn't working. This fall, Maine, Maryland, Washington and Minnesota will vote on ballot measures about marriage equality. Each has a chance to create a new playbook.

We live in interesting and often contradictory times. Public support for marriage equality continues to grow, helped recently by President Obama's endorsement. But significant numbers of Americans remain conflicted about the issue. Two federal cases - a Prop 8 challenge and a DOMA challenge - could be headed to the U.S. Supreme Court, yet LGBT people continue to live as second-class citizens in the majority of American states, including every Southern state.

Stating these facts does not in any way diminish the hope I also feel about what's possible - full federal equality - in the next ten years. The strategies we use in the years to come will be critical not just because they'll determine the pace and nature of our progress but also because they'll shape how our country moves through the admittedly choppy straits of change. Ultimately, achieving full legal equality will involve a combination of strategies - from federal litigation to grassroots organizing to lobbying - to get there. But it also requires a clear-eyed assessment of what is and is not working about current efforts.

I believe that current efforts leave untapped our greatest strength: LGBT people and allies in states where discriminatory laws prevail (which is to say most states) who are ready to take public action calling for full federal equality. To tap into this strength, we must first embrace our status as underdogs and the strategic implications of this status. By necessity, the underdog's approach to any goal favors efficient, creative, and bold tactics.

To succeed, the underdog must be efficient. Conventional wisdom in the LGBT movement holds that we should devote efforts to a state-by-state strategy that involves striving for incremental progress at the state level or trying to hold the line. This approach has served its purpose by breaking through the glass ceiling in a handful of states; the impact of those successes has been critical. But concurrently, our opponents have won in 32 states. Thus, even when we do win in a critical mass of states, the other side will still have a majority.

It's time to move beyond a state-by-state strategy that has us working on fifty fronts simultaneously (in states where marriage and employment rights have been won, muscular state-level lobbying efforts continue). This strategy makes sense where legislatures and courts are friendly to the LGBT cause, but it is inefficient as a primary strategy in states where the opposite is true. Across the South, the majority of LGBT resources are directed to state-level lobbying efforts, even as legislatures across our region endorse increasingly regressive measures on civil rights.

Moving forward, our efforts across the South should focus increasingly on the federal level, the most efficient pathway to equality for LGBT people in all fifty states. The federal level is efficient because federal legislation and federal court rulings apply nationally rather than winning one state at a time. Frankly, we do not have the time to wait for a slow, incremental march to partial equality on a state-by-state basis. In some Southern states it would take decades to achieve full LGBT quality. The human costs of these discriminatory laws are profound.

Additionally, federal actors are responsive to national polling, which shows us within striking distance of clear majority support for equality measures around a range of issues. Recent national polling, for example, shows 73 percent support for a federal Employment Non-Discrimination Act and 50 percent support for gay marriage. In contrast, 34 percent of people in North Carolina supported legalizing same-sex marriage in early 2012.

I love my state, but, in the short-term, I prefer our odds federally. I believe that intensifying federal advocacy efforts in Southern states can accelerate the pace of federal progress. This is not a widely-held view, however, because the South is often dismissed as a politically unwinnable afterthought in the LGBT movement.

Currently, LGBT people across the South are treated as second-class citizens. My wife and I are legally married in, at last count, eight states and Washington D.C. We are certainly married in our hearts. But according to North Carolina law, we are merely legal strangers. What's less widely known is that you can be fired because of your sexual orientation in 29 states and because of your gender identity in 34 states, including every Southern state. LGBT families cannot complete second-parent adoptions in most Southern states either, meaning that parents are raising children, but doing so without parental rights.

When the state you love and call home systematically denies your fundamental rights, you have no choice but to appeal to a higher authority. As a minister, I appeal to the higher authority of my faith, which says that LGBT people are fully equal children of God and that there are times when you are called to resist unjust laws rather than submit to them. As a citizen, I appeal to the authority of the federal government, which, history has shown, must sometimes act to ensure that citizens in all fifty states are guaranteed equal protection and rights under the law .

To succeed, the underdog must be creative. LGBT people and allies in the South are at a geographic remove from Beltway politics and the cultural and philanthropic nerve centers of New York City and San Francisco. Yet we are uniquely positioned to help our country understand the human urgency of LGBT equality by using creative tactics that directly resist discriminatory laws in the public square. As long as such laws remain unenforced, they also remain invisible; provoking their enforcement makes visible their harms.

This premise gave rise to the use of coordinated direct action in the Civil Rights Movement, particularly in the period from 1958 to 1964. With due deference, this analysis also shapes the Campaign for Southern Equality's WE DO Campaign, through which LGBT couples across the South request - and are denied - marriage licenses in order to directly resist unjust state laws and call for full federal equality. They do so accompanied by friends, family and clergy who lead public prayer services for reconciliation as part of the actions. At times, civil disobedience in the form of peaceful sit-ins occur after the denials of licenses. The WE DO Campaign is based upon an ethic called empathic resistance, which calls for us to directly resist persecuting laws by expressing our authentic selves and to approach those who oppose - or are conflicted about - our rights with empathy.

In the past year we have run three stages of the WE DO Campaign, taking actions in ten communities across North and South Carolina, from towns with less than 500 residents to metro areas with more than a million people. These actions have involved hundreds of LGBT people and allies and significant numbers of clergy. We'll continue to grow the WE DO Campaign across the South until we achieve full equality under federal law. In this way we are doing in public life what we have long done in our private lives: expressing our full humanity and resisting laws that deny that humanity. Ultimately, we are also making a clear moral argument to the American public. The WE DO Campaign is telling a new story about the lives of real LGBT people who live in towns across the South and are saying, simply: this is my home and I ought to have equal rights here. As more and more people understand the human consequences of discriminatory state laws, support for federal equality will continue to grow.

The WE DO Campaign is just one example of what it looks like when people directly resist discriminatory laws through coordinated campaigns based on a consistent ethical framework. Creative thinking will lead to other approaches.

To succeed, the underdog must be bold. There is a tendency in the LGBT movement to use a cautious, focus-group tested approach to talking about our lives. But too many times now, this method has failed us. For example, efforts to defeat Amendment One featured focus-group tested messaging that all but redacted the word gay. We lost by 22 points. Everyone knows that these ballots measures are about marriage equality; to act otherwise in our messaging fools no one and yields no apparent bump in our numbers or erosion in the other side's support. In North Carolina, polls showed that 57 percent of people opposed marriage equality going into the May 8 vote, and that 61 percent ultimately voted for Amendment One.

When over-expressed, cautiousness morphs into timidity. In the extreme, it can become complicity with a persecuting system, one which insists the only way to be safe is to hide who we truly are.

It's true - the risks of acting boldly are real. An unfavorable federal court ruling could slow our progress. But acting cautiously does not inoculate us from loss; witness the dozens of amendments to state constitutions that have already passed. Witness the acts of violence against LGBT people that happen regularly.

The risks of not acting boldly are even greater. Nowhere is that clearer than in the South, where LGBT people conduct their lives with dignity and yet also live with the daily consequences of laws that dehumanize us. As a friend recently put it, What exactly are we protecting by playing it safe?

At its best, strategy reflects both a savvy assessment of the political and cultural landscape you operate in and an expression of human truths. Now, more than ever, we must appeal to the very traits that define LGBT lives as we construct strategy.

As LGBT people, we stake so much on the premise that the truth matters, even when the risks are profound. Remember the first time you came out. For me, it was in 1993 and I was eighteen. It took everything in me to say those two words: I'm gay. I was terrified and unable at the time to imagine the fulfillment and joy I have found as an adult. But I knew that my only shot at a future of any kind began with that truth.

The final mark of the underdog is an urgency borne of knowing exactly what is at stake if we fail to act.

The issue of LGBT rights is not going anywhere. The volume and complexities surrounding this issue will continue to intensify until we reach some form of national resolution. Increasingly, the questions we face will be inflected by morality rather than pragmatism: What is each of us prepared to do to achieve full federal equality? How long are we willing to wait?

As another friend put it, standing next to her partner of 30 years after their marriage license was rejected during an action in the WE DO Campaign, "We're in our mid-sixties. Can you tell us what steps we might take to be full and equal citizens before we die?"

Focus groups cannot answer such questions, but human hearts and consciences can be moved by such words.

The black letter of the law bends to the power of such human truths, but only when boldly constructed federal challenges create the occasion for it to do so.

Stories like this abound in the lives of LGBT Southerners, cast alongside stories of estrangement and reconciliation that pre-figure the process our country is currently in the midst of. That's why the South has always been fertile territory not just for narrative, but also for strategy. And that's why it will, I believe, be the underdogs who lead our nation through these straits.