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April 24, 2009

Change minds first, then laws, says ACLU’s Coles

Columbus--“Changing the way people think is as important as changing the law,” according to Matt Coles, who directs the American Civil Liberties Union’s Lesbian, Gay, Bisexual, Transgender and AIDS Project.

Coles spoke to nearly 50 future lawyers and community activists on the Ohio State University campus April 16. Most of his audience attends OSU’s Moritz College of Law or Capital University Law School.

The event was sponsored by Moritz Outlaw, the LGBT student group.

Coles is one of the most influential attorneys and strategists in the LGBT movement, having worked at it more than 30 years. He has been at the ACLU since 1995, serving as a lead attorney in the landmark Romer v. Evans case before the U.S. Supreme Court in 1996--the first pro-LGBT ruling the high court ever handed down, and the basis for the 2003 Lawrence v. Texas.

Romer overturned an anti-gay Colorado constitutional amendment and prohibited governments from singling out minorities to exclude from fundamental rights. Lawrence made sodomy laws unconstitutional.

Coles has also been a pre-eminent legal advocate for LGBT students rights, marriage equality, protection of people with AIDS, employment non-discrimination and others.

In a later interview, Coles jokingly called his decision to work in the LGBT movement “bad judgment,” adding that he went to law school in California to get off the East Coast in 1973 “so I could come out.”

But at OSU, Coles talked more about politics than law.

“Lawyers are bad storytellers,” Coles said. “Lawyers should be the enablers of people whose lives embody the principle [one is advancing]. It’s like finding a Rosa Parks.”

“Making enduring change in America is politics, not law,” Coles said. “You can’t make change simply by changing the rules. You have to get people to accept the change.”

Coles reiterated that theme many times throughout the presentation, citing examples where that has not happened from Roe v. Wade to the fight for marriage equality.

Coles described what he calls the “classic path” to change in America that successful civil rights efforts have followed.

“Never try to attack everything with a single bill,” Coles began, criticizing an omnibus LGBT rights bill that was proposed last month.

“States go first,” Coles continued, “Change comes in pieces and parts. The progressive states go first.”

After a majority of states change, “then you use Congress and the federal courts to do clean up with the recalcitrant states.”

Coles emphasized his belief that no sustainable change can come from the federal government first.

“People wrongly think that civil rights happened with the Civil Rights Act of 1964,” Coles said.

“New York passed the first civil rights law in 1945,” Coles continued, adding that by the time Congress acted, the only states left were “a few located in the southeast, and we know which ones they are.”

Coles said that the abolition of sodomy laws followed a similar path. By Lawrence, he noted, most states had already repealed their sodomy laws.

“Marriage is the right thing to be fighting for” Coles told those assembled that he originally did not think marriage equality was the right fight, but he has since changed his mind.

“Nomenclature on non-marriage relationships is a mess,” Coles said.

“In 1981 in San Francisco, I helped invent the term ‘domestic partnership,’ but if asked, I will deny it,” Coles said.

“From the mid 1990s to now, marriage has been politically expensive, unprecedented in political cost,” Coles continued.

“But our opponents won’t let us avoid it [marriage],” Coles said, “and it forces a national dialogue.”

That dialogue, which Coles says is being won by those favoring marriage equality, is rooted in the notion that same-sex couples are as worthy as opposite sex couples.

“It used to be said that we are emotionally shallow and incapable of forming relationships,” Coles said. Characterizing LGBT people as the “other” was also used to justify discrimination.

“The marriage debate undermines that and puts it front and center.”

Coles also said, “What changes people’s minds on LGBT people is conversation, people talking about being LGBT.”

“It’s not just coming out,” Coles said. “That’s not enough. You must have the conversations with people around you. When they change, they will also start having conversations.”

Once the majority of citizens become more LGBT affirming, Coles believe legislatures will act.

“The path forward needs to be focused on legislatures, not courts,” Coles said.

Coles said because legislators are elected, changes that come from legislative bodies have more legitimacy than those coming from courts.

“The debate in legislatures is more robust,” Coles said, “and frankly, there aren’t many good courts left [on marriage].”

“As we’re going to see in California,” Coles said of the state supreme court challenge to Proposition 8, “state courts cannot repeal the constitutions.”

Coles believes that the states with anti-marriage amendments, including Ohio, can repeal them within ten years if the conversations with the electorate happen, including the discussions around a legislative agenda.

Coles also said that Ohio and Michigan are states that can repeal their amendments relatively soon because they are “moderate politically.” Repealing those two would be strategically significant on the national field.

“And in Ohio in 2004, we lost by a smaller margin than just about anywhere else up to that point,” Coles said.

The Ohio amendment passed with 62 percent of the vote.

“Start having the conversations in the cities,” Coles said. “Put gay issues on the agenda with non-discrimination laws and hate crime protection.”

“In California between 1977 and 1992, every major city had a slightly different employment non-discrimination law,” Coles said, “each creating conversation.”

“Then, the manufacturers association, of all groups, wanted the same thing everywhere, so it went to the state legislature. That, too created more public dialogue and turned more people around.”

Coles said Ohio can and must start doing the same thing, going for the easiest targets first, and once the discussions start, ask for more protections and benefits, keeping the conversations going.

“Push for non-discrimination laws where you don’t have them, and where you have them go for domestic partner plans,” Coles said, “if the legislatures won’t do it, go to employers.”

Coles sharpened the prescription for Ohio later..

“Ultimately, Ohio needs to repeal its amendment,” Coles said. “And these things come up from the ground.”

“There is no way any outside force is going to fix this for us,” Coles said, “No court and no charismatic politician. We can only change the way people think with one-on-one conversations.”

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