Courts of Law and Public Opinion

Philanthropy411 is currently covering the Communications Network Fall 2013 Annual Conference conference with the help of a blog team.  This is a guest post by  Paul VanDeCarr, Managing Director and co-founder of Working Narratives.  Follow along on Twitter – @wnstory.

Paul VanDeCarrCropI learned a few things at the Communications Network conference session on “Impact Litigation as a Tool for Social Change: Perry v. Hollingsworth and the National Conversation about Marriage Equality.”

One, the folks who waged the fight against Proposition 8—in the courts of law and of public opinion—are really smart. Seriously, they’ve got brains to spare. Presenters included Felix Schein, principal of Griffin|Schein, a public interest communications firm; and Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER).

Two, on a related note, communications was a critical element of their strategy—for more than one reason. “Impact litigation” means taking on legal cases where a win will affect a lot of people, rather than just the litigants; a communications strategy can help boost the chances of a legal win, complement the impact of a win, or buffer the effects of a loss.

But before I get into that, here’s little memory refresher. In 2008, California’s Proposition 8 passed and amended the state Constitution to eliminate marriage rights for same-sex couples. The public interest communications firm of Griffin|Schein didn’t like that one bit, so they conceived of and launched AFER to fight back; Griffin|Schein still houses AFER and manages strategy and media relations. AFER was the sole sponsor of the federal court challenge of Proposition 8, otherwise known as Hollingsworth v. Perry. That case was argued by legal eagles Theodore Olson and David Boies, who pretty much kicked ass all the way to the U.S. Supreme Court.

So why does communications matter when using fighting for justice through the courts? For one thing, it matters for fundraising. Okay, maybe not so much in the case of AFER, which was launched almost entirely with funds from a tiny handful of donors, among them record mogul David Geffen. But for other impact litigation groups, it can be tough to get foundation or other financial support, said Schnein in the conference session, because there’s a sense that it’s a “binary”—you either win the case or you lose. So it’s hard for an ED to go to a foundation and ask for a grant for a case they may very well lose, or after the fact to report, “We spent $1 million on this case and we lost.” But Schein disagrees with that perceived binary; if you run a good a communications effort, he says, you can leverage a legal case to change public opinion, regardless of the court’s decision. That boosts nonprofits’ chances of securing foundation support.

Changing public opinion not only matters for fundraising, of course, but for the cause, too. There was a not insignificant shift in public opinion on marriage equality between the passage of Proposition 8 and this summer’s U.S. Supreme Court ruling. That was thanks in part to AFER’s work around the case. On its way to the U.S. Supreme Court, the case was heard in Federal District Court, where the judge ruled that the proceedings could not be televised. However, once the transcript of the hearing was released, AFER enlisted Oscar-winning screenwriter Dustin Lance Black (“Milk” and “J. Edgar”) to pen “8”—a play based on original interviews and court transcripts. A one-night-only staged reading of the play in NYC and LA by such stars as Morgan Freeman, George Clooney, and Brad Pitt raised a big pile of cash for AFER, and the script was made available for any community group to do their own staged reading and talkback. Community productions and a YouTube video of the play have been watched over a million times. Who knows if it changed any minds, but it certainly rallied the base.

Technically, judges and justices are supposed to make decisions based only on the legal merits, but in truth they may also be swayed by public opinion, or by the opinion of certain publics, anyway. When the case reached the U.S. Supreme Court, AFER assembled amicus briefs from big names from across the political spectrum and in government, business and other spheres. The U.S. Supreme Court dismissed the appeal to the District Court’s decision, effectively returning marriage equality to California; to capitalize on that victory, AFER and Griffin|Schein organized media events in Los Angeles and San Francisco around the resumption of weddings—they celebrated the win and showed TV viewers that this was nothing threatening.

With the Proposition 8 case over with, the two groups are continuing to fight in other states, with an eye to winning full marriage equality for all Americans. The change they make will not be made in the courts of law alone, but in the hearts of people who come to embrace, or at least tolerate, same-sex marriage. Their example offers a role to foundation communications staffers to support impact litigation grantees looking to have a broader impact than just in court decisions.

Paul VanDeCarr is the managing director of Working Narratives, and the author of that organization’s recently released publication, Storytelling and Social Change: A Strategy Guide for Grantmakers. Write to him at paul@workingnarratives.org.

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