Thursday, November 09, 2006

Fair Wisconsin lost more than the vote

As I have said before, many of the marriage amendment opponents with whom I have debated in the past month and a half are intelligent and bright people who it was a pleasure to get to know. I can say the same thing about many opponents that came to hear us and who I got to meet after the forum. We disagreed but respect each other's intelligence and integrity.

But Fair Wisconsin, as an organization, not only lost, but it left as a loser. There is a post by a gay man in response to the elegiac finale on the "No on the Amendment blog(go to comments and scroll down a few from the top), posting Mike Tate's concession speech. This gentlemen (who calls himself "Skippy") is quite obviously upset that the amendment passed and angry with Fair Wisconsin. Referring to its deceptive last minute automated calls, Skippy said that Fair Wisconsin flat out "lied" to the people of Wisconsin. "I would like to see Fair Wisconsin Retired... and will not rest until that happens...", he writes, "NO BODY that sticks up for me is going to go around and LIE..."

The man believes that this may have convinced supporters of gay marriage or its equivalent to vote "yes" but also believes that it severely hurt the gay community by making "us out to be phonies [and] fakes." (NB: the guy who was responsible for the calls is not gay.)There were, when I last looked, 44 comments in response to the "concession" post. They lament the results and congratulate each other on their hard work, but no one addresses Skippy's concerns.

Commenting on Fair Wisconsin's sophisticated and prodigious fundraising, Rep. Mark Pocan pronounces the group a "winner" and he's right that they did many things very well.

But how do you justify a deliberate attempt to confuse voters? How do you excuse a lie? The ad campaign was, essentially, the equivalent of leafletting black neighborhoods with fliers that say, because the polls will be busy, Democrats should vote on Wednesday. It is as if the GOP had told elderly Jewish voters in West Palm Beach to check the box for Buchanan if they wanted to vote for Kerry.

No, it didn't work, but this isn't about the amendment. Does anything go in politics? Does your end justify any means? If you are persuaded that you are on the moral high ground, does that mean that you may lie in order to hold it?

I asked Mark Pocan to respond to these questions. He has apparently not had time to respond, but I really would like to hear from anyone who thinks this was ok. Pointing to ads that may have been nasty or played fast and loose with the facts is not an answer. These calls were uniquely deceptive. They were, arguably, a crime under Wisconsin law. While I'm not suggesting we put the bracelets on someone, these calls were audaciously fraudulent.

The amendment passed and we can continue to debate whether that is a good thing and how it ought to be interpreted. This is about the rules of the game. Do we really want our campaigns to be run in this way?


Michael J. Mathias said...

Well, it was certainly a lie to suggest that allowing gays couples to obtain civil marriage licenses would somehow diminish or endanger heterosexual marriages. Yet that was done repeatedly by your side, and it helped fan the emotions that drove the outcome on the amendment. Should we be waiting for you to apologize?

Anonymous said...

The deception here came from the Yes side. You stated repeatedly that this is not going to affect health insurance benefits, despite the fact that this exact language has triggered suits to eliminate such benefits in other states, and the truth that such benefits HAVE been taken away. You stated that the seond sentence was needed to protect marriages, when the truth is that the right to heterosexual marriage has not once been challenged in court. You stated that this was about protecting the sanctity of marriage, despite that fact that not a single heterosexual divorce has ever been caused by gay people wanting to protect their families.
You chose to hide your financial contributors from the public and to use churches to push a vote--something prohibited under Wisconsin law.

Fair Wisconsin told the truth. Had the amendment not passed, nothing would change. Two weeks ago we could not get married, could not protect our own children, could not file taxes jointly, got taxed on property taxes, and so on. Had the amendment been rejected, we would not be able to get married, would not be able ot protect our children, would not be able to file taxes, would be taxed on property transfers, and so on. So who is the liar? You are.

What has changed is this: for the first time in Wisconsin history, an amendment to our constitution singles out a minority group and says you are not equal to us. How proud you must be Rick. Let's check in 5 years from now to see if you have finally obtained a sense of shame.

Anonymous said...

To a certain extent I most certainly agree with anonymous and mjmathias.

However as a volunteer for Fair and a financial contributor, I think some of the messages and methods were unacceptable. I think it was an embarrassment and NOT the way to conduct the campaign.

I am so saddened that this nonsense passed. But, as Dr. King said, the arc of the moral universe is long, but it bends towards justice. In the end, I know those of us who voted no will prevail.

John McAdams said...

Michael J. Mathias said...

Well, it was certainly a lie to suggest that allowing gays couples to obtain civil marriage licenses would somehow diminish or endanger heterosexual marriages.

The problem with your argument here is that the Amendment proponents sincerely believed what they said about this.

You might think them wrong, but they weren't trying to persuade people that "yes means no" or that "no means yes."

Michael J. Mathias said...

John: If it was a belief (and I have my doubts), it was a belief stated without any evidence in its favor. The “yes” side simply stated marriage between a man and a woman is a tradition, and then looked around meaningfully as if music from "Fiddler on the Roof” had just been cued.

As for “yes means no” and “no means yes,” not a single gay couple could have been legally married on November 8 if the vote had gone the other way. Current Wisconsin law would have continued to prevail. And since the amendment bans civil unions, which are fairly consistently approved of in polling, the “yes” vote did mean a “no” vote to those arrangements.

Rick Esenberg said...


We did sincerely believe it. In fact, as I routinely said, I don't have any moral judgement against homosexuality. While I don't think society needs to regard it as normative, I am completely uninterested in oppressing gay people. I did offer arguments as to why I thought redefining marriage would harm it.

But you haven't answered the question either. I can only assume that you believe that, because (in your view) your side is right, it was ok to lie.

Anonymous said...

What is the "lie" you are referring to? That a No vote changes nothing? That is absolutely true. That a Yes vote means a court will decide? That is true.

I was in a meeting today with a bunch of fellow lawyers. The topic of discussion was which one of them was most likely to file suit to use the amendment to take away protections that currently exist for unmarried families (The Watts cases). They were not kidding or discussing the hypothetical. It is about to happen.Thanks Rick.

Rick Esenberg said...

A "yes" vote does not mean that a court will decide the "meaning of marriage" or whether it is between a man and woman. The import of a "yes" vote is that it took that decision away from a court - at least to the extent its interpretation was based on state law. You may think that's a bad idea or you may think that the second sentence went too far - not because it would allow activist courts to redefine marriage - but because it would invalidate non-marital arrangements. That'd be an honest argument, however I might disagree with it. But the calls didn't say that. They tried to persuade people that "no" meant "yes" and I am still waiting for someone to explain otherwise. If you are a lawyer, Anon, you should be able to address the distinction. I know you think I'm wrong on the amendment, but tell me why I'm wrong on that.

Anonymous said...

Here's why it is not a lie, and is actually a response to the lies told by Yes: The amendment itself was specifically written by the authors so that the courts would have to ultimately determine it effect on marriage, on civil unions, on protections for families. I was at the hearings and listened to Gundrum and Fitzgerald say that. It is THEY who decided the courts should determine how Wisconsin treats families!!!!! A Yes vote expressly put the issue in front of the courts. A No vote expressly left things as they are. No gay marriage, no civil unions. Thta is exactly what the messages said, and they are right. The only reason people may have been confused by the calls is because they were inundaated with lies from the Yes campaign, including the absolute lie that a suit had been filed in Wisconsin to gain gay marriage. That is an utter lie, and it is from your camp. How else can we respond? No means leave marriage the way it is. Yes means put it in front of a court. It is true today and it was true then. In the next several weeks, it will become true in a court of law.

As a lawyer, Rick, you know that they could have simply had an amendment that says "Marriage is reserved for one man and one woman united...blah blah blah" Or they could have followed the amendment in Hawaii, which specifically identified the legislature as th eonly body with the authority to define marriage (permissive of potential changing attitudes and beliefs). INstead, they went far beyond that to really, truly and painfully hurt WI citizens. How dare you sit there and judge people trying to protect their children.

The fact of the matter, demonstrated over and over and over before this was even introduced, is that the drafters of the amendment AND THEIR SUPPORTERS are the ones who have asked the courts to make these determinations! I am so tired of you failing to acknowledge the lies told in every other state. Gee, we don;t mean to impede the right to health insurance (pre-amendment) followed immediately by "sue the bastards to take away their protections." That will serve them for having the gall to love each other and their children!

Maybe you personally don't want to hurt gay people. Well bully for you and your enlightened attitude. But those with whom you have alligned yourself most certainly do want to hurt us. And chief among those persons is Julaine Appling, the never-married hypocrite for Yes for Marriage.

Michael J. Mathias said...

I have no connection to FAIR Wisconsin and can't speak to any of their tactics. I certainly don't think it's okay to lie, but as transgressions go in political campaigns this was fairly minor. The calls were misleading--but not a lie at the level of Bush telling reporters last week that Rumsfeld was his man for a second term.

As for your beliefs that gay marriage would hurt married heterosexual couples, maybe you are sincere. Kevin Barrett claims to be sincere about his notions as well.

Anonymous said...

michael j.

This is a type of "lie" that occurs everyday in the business world, the sports world, and the political world. Let's say the Packers wanted to dump McCarthey or a business wanted to get rid of an upper management person; they would be saying the same thing the day before they made their move. It happened to Mike Sherman. Be it sports, politics, or business, they don't have to inform anyone of these inside business decisions ahead of time. This doesn't change the fact that this move needed to be made awhile ago.

Rick Esenberg said...

One of the Anons gets credit for at least trying to defend the calls, but I can't see his or her point. Anon writes:

A Yes vote expressly put the issue in front of the courts. A No vote expressly left things as they are. No gay marriage, no civil unions. Thta is exactly what the messages said, and they are right.

That's just not true. The amendment precludes a court from determining that marriage means something other than a union between a man and a woman on state law grounds. The calls imply that a "no" vote would do that, but it would not. You can argue, as amendment opponents did, that our court "would never" refine marriage, but a "no" vote would not prevent them from doing so. If, therefore, you want to stop "activist judges" from determining the meaning of marriage which, the call stated, is a "union of one man and one woman," you had to vote "yes" not "no."

It is true that courts would have to determine the meaning of the second sentence (call it the civil union ban)and the chance that they might get it wrong is a legitimate argument for opponents to make, but that's not the argument that the calls made. The calls associated activist judges with changing the meaning of marriage from one man and one woman and only a "yes" vote could prevent courts from doing that.

Anonymous said...

You have to look at the context of this. The Yes folks deliberately lied and sent out information stating that there was a lawsuit in Wisconsin to force a judge to decide that gays could get married. That was a blatant lie, and it was repeated publicly by Mark Gundrum, and printed in the literature spread by Julaine Appling and her anonymous donors.

The truth is that the No people were NOT asking for a judicial determination about marriage. There was no such request or lawsuit. That is as blatant a lie as one can make But the Yes people stated time and time again that the amendment was going to force judges to decide issues of marriage and civil unions. The truth is teh YEs people have now forced us to have a court decide whether or not Wisconsin can restrict marriage to one man and one woman. It is not a fight we were looking for, but the Yes people were.

If you think we are going to now sit back and just argue for little scraps of protections you may think non-objectionable, you are sorely mistaken. You have now categorized us and our children as second-class citizens. We will not sit idly by and beg for your support. We are going to fight this tooth and nail. The fact that you decided to make this one sentence means we are now going to challenge the entire amendment.

Bottom line: the Yes folks have now done exactly what FW said they were going to do, force a legal challenge the status of marriage in Wisconsin. Frankly, we would have been more than happy to create a status such as civil unions in Vermont or California, but you went too far.

The phone calls were correct. You should have let the sleeping dog alone.

Eric said...

We talked on Mark Pocan's blog. While I don't feel you responded to my complaints about Yes's misleading and I personally believe immoral comments and arguments, I again condemn the robocalls by Fair Wisconsin as misleading.

That said, I think we're getting into pretty dangerous territory if we're saying deceptive (but not totally untrue, even if misleading) election speech should be prosecuted. I'm not a lawyer, only a casual interested observer of the law but I don't think the statute says that misleading election speech is illegal and I don't think that was intended to do so.

Again to be fair on this, Ms. Appling said time and again that no one's benefits were at risk if the amendment passed and then two days later said that there will be lawsuits regarding benefits, just that her group wouldn't be the ones suing. That sure sounds misleading to me but I don't think she should be charged with a crime at all just like I don't htink the robocalls should be.

Rick Esenberg said...

I have a piece in tomorrow's Journal Sentinel in which I say that it would be just as disgraceful for amendment opponents to say one thing and mean another. I have spoken to Julaine Appling about the second sentence and I think I can say that she means what she always said and what Gundrum always said. They don't think it prohibits things like insurance benefits. I have always acknowledged that there are other people who read it more expansively to prohibit making the availability of those benefits essentially turn on being in a sexual relationship. They may file a lawsuit to either strike those benefits or force them to be made available on a broader basis. But, if they do so, they are going to be making an argument that is contrary to the view of the amendment's author.

Michael J. Mathias said...

Rick, your last comment is just foolish. It no longer matters what Appling or Gundrum think. Lawsuits will be filed. Courts will decide what this amendment means, and the language they will have to work with is the most far reaching and restrictive possible.

As for what this argument is really about, let's all check with Massachusetts in the next few years and see if civilization there has collapsed as a result of gay marriage. Here's my prediction: it won't.

Anonymous said...

Let's continue on with this holy crusade and now ban divorce. Let's make marriage a contract for life.

Will you sign on for this holy crusade, Righteous Rick?

Rick Esenberg said...

Michel J.

The opinion of the authors is probative on the meaning of the amendment. It's one of the things a court will look at.

I am far from righteous. Banning divorce would be unworkable (I think a guy named Jesus first suggested that), but I certainly think we'd do well to work on making it less frequent.

Anonymous said...

So, may we assume you aren't planning on getting divorced for a second time?

Anonymous said...


You assume correctly. I am a strong supporter of the second amendment.

Anonymous said...

You deleted my post asking whether your divorce was caused by gays and lesbians wanting to protect thier familes, claiming that it was to protect your ex wife? It is a public document, and all I am asking is to confirm whether you believe in the sanctity of marriage, and whether your apparent breach of the sanctity was caused by GLBT families wanting to protect their families.

I contend that there has never been a divorced caused by me wanting to protect my family. I think the public should recognize that the leaders of this movement are hypocrites. You hae been divorced and Julaine Appling has never been married. Talk about deception.

Rick Esenberg said...

That's an intellectual sloppy question. It is, as Maggie Gallagher says, a sound bit and not a serious thought. Redefining the public understanding of marriage runs the risk of affecting its norms and the attitudes of people toward it. I have explained this at length elsewhere and I'm not going to repeat it again here. I acknowledge that other social forces have also contributed to a change in the norms surrounding marriage. It may well be that my divorce (and many others)were,at least in part, the result of changing public attitudes about marriage (although not, in 1994, brought about by its redefinition). It may be that my experience with the effect of family break up on children (both as a child and parent) informs my concern about marriage. But I am not going to talk about my personal situation because I am not the only person involved. My ex-wife did not inject herself into this debate (and, if she had, it would almost certainly be on the other side). My wife did not agree to having my prior marriage (with which she had nothing to do) discussed in public. That'd make any woman uneasy. So I am going to engage on this question. If you can't understand why, I can't help you. I am completely comfortable that, at least on this issue, I am not a hypocrite. But even if I were, my arguments should be judged on their merits and not on my personal circumstances

Anonymous said...
This comment has been removed by a blog administrator.
Eric said...


The authors intent of the amendment would be taken into account by the court but a court will also use rulings from judges in similar positions as a bit of a guide to how they rule. What I feel is ironic about the whole thing is that to prevent courts from defining marriage they're basically suggesting that courts should define marriage (in order to know what isn't marriage and what isn't substantially similar to marriage)

While I'm not unbiased on this, I also consider it bad public policy to add something to the Constitution when the one of the authors of the amendment (Fitzgerald I think) said they don't know what part of the amendment actually means. While I'm opposed to the concept of any such amendment, it would have been better public policy to simply add the first sentence to the Constitution. There's clearly a difference of legal opinion on this issue before the amendment even passed which doesn't bode well for the future. I'm a little surprised that you, as a legal scholar, don't have similar concerns about this. I mean for what its worth, the US Supreme Court thought that a right to privacy was implied in the US Constitution without it being enumerated. That's with a Bill of Rights that was relatively clearly written and its harmed conservatives and their political causes for 40 years. To me, its kinda like Conservatives should know better than adding something unclear to the Constitution because you never know how a court will rule on it 10, 50 or 100 years from now. Just a thought.

pirschen43 said...

To expand on what Eric said, the second sentence needed further clarification. And during the Senate proceedings, clarifications to the amendment were offered. And yet, Republicans voted those clarifications down.

Why? Because any changes to the wording would have required that the process "start over" and get approved by the legislature again, thus pushing the question off of the Nov 2006 ballot. And getting the question on THAT ballot, for the purpose of driving conservatives to the polls, was the reason that the Republican legislators introduced and backed the amendment.

Secondly, it's interesting that you referred to the robocall as potentially a "crime." What about the Yes side's 5000 DVDs that were not reported as expenses, under the guise of "educational material"?

And isn't it interesting that, according to Vote Yes's filings with the Elections Board, as of Oct 23, over 1/3 ($60K out of $166K) of their income came from a group called "Wisconsin Family Action"? Where did that group get its money from? Conveniently, we will never know.

I remember listening to a debate where Ms. Appling stated something like 90% of their income had come from within Wisconsin. It's hard to believe that when groups like "Wisconsin Family Action" are likely used as fronts to accept out-of-state money and turn it over to WI campaigning.

Rick Esenberg said...

I guess I just don't think its all that unclear. All language requires interpretation and any principle that is important enough to put into the constitution is likely to require some explication. The case reporters are full of decisions that try to figure out precise meaning of "free speech," "due process" and "equal protection." (Ironically, the no side wanted us to rely on an asserted meaning of the latter far more ambiguous term to be confident that courts would "never" impose gay marriage.)I have never understood why it was so unacceptable to get the referendum on the November ballot. Why shouldn't we put constitutional amendments on the ballot when voters are most likely to go to the polls? Would it really have been better to vote on this along with a bunch of school funding referenda and the race for two seats on the Mosquito Abatement Board?

Eric said...


In response to why you'd want to vote earlier, I think the rhetoric from the authors of the amendment shows why you'd want to get it on the ballot as early as possible. This was to PREVENT any court from ruling that marriage. The longer you wait, the more likely a ruling will come which will "beat" the amendment and "redefine" marriage. Even though the passed amendment would override the original ruling, it's one thing to prevent same-sex marriages from happen but something very different in taking away marriage that are already legal. Why would the supporters of marriage want to take that chance?Remember this was in response to MA's ruling. The line I heard often times was we need to do this BEFORE a judge rules that marriage is not between one man and one woman.

The other issue is plain electoral politics. Spring elections usually have extremely low turnout making it much easier for a group to get out the vote and affect the result. In addition, wouldn't you want to do it as quickly as possible so the MA ruling is fresh in people's minds? By waiting, you risk people forgetting or realizing that maybe MA isn't falling apart. While Fair Wisconsin may not say it, the NJ court ruling was just about the best possible thing that could have happened to amendment supporters. You got lucky with that. However there would have been no way 2 years ago to know that this would work out like that. I would think practically you'd want this vote sooner rather than later.

If I was a conservative Christian, I'd be insulted by the blatant political manuevering to make sure that this amendment was on the same ballot as the Governor's race when this could have been voted on as early spring 2005. Fortunately, nationwide I think evangelical christians realized what Republicans think of them, which is why they voted ~33% Dem instead of ~20% in '04. The Republicans may agree with them on social issues but the lack of real social justice initiatives under Republicans doesn't represent their values. They're still values voters, its just they seem see values in a broader light.

Anonymous said...

I'm coming a little late to this, but welcome the opportunity to respond to the intial observation that no blogger on the Fair Wisconsin site responded to the issues raised by Skippy. I contributed heavily to Fair Wisconsin, and believe the work of its volunteers in raising awareness of this issue was and will continue to have an important effect in Wisconsin. The day after the election, I was very disturbed to see Skippy's comment, did some quick research, and learned for the first time about the misleading Robocalls. I posted two polite entries on this blog over the following two days asking for clarification. Non-related entries appeared before and after the times I wrote mine. I contacted others like myself had contributed or who had volunteered for Fair Wisconsin; we all were dismayed and angry as Skippy was over Fair Wisconsin's tactics. It became undeniably clear that our reasonable posts on this topic were being selectively censured. Suddenly, a notice on the FW site went up that no more postings would be accepted. Emails to Mike Tate (who had to approve or disapprove these calls) on the subject have have been ignored. Did Apling's group lie? Lord yes. Outrageously so. But, deception to get what you want is wrong no matter who does it. As a friend wrote Mike Tate: "Had we defeated the amendment, it would have been only a partial victory because of such tactics; losing is all the worse." I'd like Skippy to know that Fair Wisconsin and Mike Tate no longer represent a whole lot of us.