By the end of the first day of the federal trial over same-sex marriage, one of the defenders of California’s ban on same-sex nuptials expressed his frustration at the flurry of publicity that had greeted the proceedings.
“This is a trial. This is not a campaign,” Andrew Pugno, representing Protectmarriage.com, griped at a press conference.
He’s right — but that doesn’t mean the campaign isn’t important, even if it’s one that has as much the feel of the blitz surrounding a movie’s opening weekend as it does the run-up to Election Day.
Landing on newsstands on the eve of the trial was a Newsweek cover, “The Conservative Case for Gay Marriage,” that was penned by Ted Olson, the star legal eagle who is lead counsel in the case along with David Boies. After their first day in court, the duo appeared live on MSNBC’s “The Rachel Maddow Show.”
Moreover, the plaintiffs in the case — two same-sex couples who sought to get married but were denied marriage licenses — were called to testify on the trial’s first day, delivering attention-grabbing personal stories that translate well when media attention is at its peak.
All that was missing was the visual of the trial unfolding, as TV coverage of the proceedings that was scuttled literally at the last minute when the Supreme Court kiboshed U.S. District Court Judge Vaughn Walker’s plans for camera access.
To be sure, given the momentous nature in this chapter of civil rights, it’s not as if Olson, Boies and their legal team have to convince the media to cover the case. Much of the publicity is by request of news outlets, as evidenced by the fact that a media coalition, including all the major broadcast and cable news networks, had pressed for TV court coverage, with their attorney comparing the case to the Scopes trial of the 1920s.
And while Prop 8 proponents may grouse about the publicity blitz, they, too, aren’t shrinking from the attention, via a stream of Twitter feeds and blog posts. They, too, have hired a prominent legal eagle as their lead counsel, Charles Cooper, although he didn’t participate in the post-trial press conferences as Olson and Boies did. And shortly after the Newsweek cover story landed, Edwin Meese III, attorney general in the Reagan administration, penned an essay in the New York Times, “Stacking the Deck Against Proposition 8,” in which he questioned some of Judge Vaughn Walker’s pre-trial rulings that favored the plaintiffs. But there’s also already complaints of media bias, in no small part because a significant number of journos who are covering come from the gay press, or are, like myself, in a same-sex union and can’t make a serious claim of neutrality.
Whatever the case, there’s little doubt at which side has, so far, been more adept at framing the debate.
The teaming of Olson and Boies, who fought on opposite sides of Bush vs. Gore, has been like a casting dream, and the novelty of it has continued to draw attention from the moment of their first press conference, staged last May before a row of American flags.
The case’s origins in entertainment industry activism has surely helped in the form of money, support and expertise. The American Foundation for Equal Rights, the org backing the lawsuit, is led by political consultant Chad Griffin, who has long represented Rob Reiner and other industry clients, and the foundation’s board includes Reiner as well as the producer and screenwriter, respectively, of “Milk,” Bruce Cohen and Dustin Lance Black. Cooper made note of Hollywood’s support of same-sex marriage in his opening argument contention that gays and lesbians are far from a class of people wilting under discrimination.
The foundation has as support a publicity team, all but resembling a campaign’s “war room,” sending out regular Tweets from the courtroom and a steady stream of press releases. They’ve also made available candid shots of the trial’s participants, lensed by Diana Walker, the Time magazine White House photographer for 20 years.
Does all this attention matter?
On Maddow’s show, Olson said that it was a matter of education, and that “more and more people will accept the decency and equality that our constitution requires.” That could come in handy should Walker rule in their favor, as Prop 8 supporters almost surely would cast such a decision as an activist judge overturning the will of the people.
Hilary Rosen, managing partner of the Washington office of the Brunswick Group and a member of the foundation’s advisory board, said, “The truth is, great civil rights trials in the country have all been teachable moments, and this case is no exception. You don’t generate publicity to influence the judge. You do it to educate the public, long-term, on the constitutional issues in a case that is about whether we are going to strive to form a more perfect union.”
That same mindset was in play when Black penned an essay in the Huffington Post, in which he said that with the trial, “we are fulfilling Harvey’s dream,” taking a civil rights issue to the federal level in a very public way.
I don’t think anyone is trying to sway [Judge Walker’s] opinion by getting on an entertainment program,” Black says. “I have more respect for him than that. I think there is another side of the case that is valuable, in that it is another opportunity for us to have our voices heard, our stories be told. There’s so many misconceptions about gay and lesbian relationships, and it’s one of the reasons I wish the American people got to meet these plaintiffs on the stand the other day.”
The visuals aren’t there, but by week’s end, it became apparent that the case would be digested in 140 character bites, as Walker has allowed Twitter in the courtroom. And backers of Prop 8 have no objection to that form of communication. One the contrary. One group, the Alliance Defense Fund, even complained that its Tweets were somehow being blocked.