AFTER DOMA: Ken Mehlman on What’s Next
By Aaron Hicklin
An interview with the conservative marriage equality activist Ken Mehlman on DOMA, the conservative movement, and what's lies ahead.
Out: Did you anticipate yesterday’s results? Or were you caught by surprise?
Ken Mehlman: I wasn’t surprised by the results, based on the conversations I’d had with Ted Olsen and David Boies from AFER, which is a board I serve on, and also I’d gotten to know Robbie [Roberta] Kaplan [the lawyer for Edie Windsor]. Although no one can predict the court, it was possible to imagine this result based on the hearings earlier this year. If you read Justice Kennedy’s opinion, and I take him at his word, he looked at that law [DOMA], read the legislative history of the law, and concluded that the law should be overturned.
Are we likely to see a Republican backlash?
I don't think so. If you look at the history of marriage from the beginning, what you see is that after states pass civil marriage, support invariably grows across party lines. Look at Massachusetts and New Hampshire, both states where marriage equality laws were passed with fewer Republicans, but ultimately Republicans and Democrats came around to embrace gay marriage. As people see what happens when people are treated equally under the law, when there is the opportunity for civil marriage, they see their family values being enhanced, they see their community values getting stronger. When I went up to New Hampshire last year during an attempt to roll back marriage equality, I met with a whole lot of Republican state legislators, and one of the questions I asked, particularly of those who were conceptually skeptical of the issue, was if they could name anyone in the community whose life was worse because of marriage equality. And then I asked if they could name anyone whose lives were better. They recognized that point.
Is the battle won?
No, there’s a lot of work to do—although 30 percent of America is going to live in a place where loving couples, regardless of sexual orientation, have the right to marriage, there are 37 states where that right still does not exist, and 29 states where people can be fired because of their sexual orientation, so that’s where a lot of the work ahead lies.
What role will you play in that?
What I will do, and keep doing, is to listen to the experts and professionals, from people like Chad Griffin [at HRC] to Evan Wolfson [at Freedom to Marry] and Matt Coles [at ACLU], and others. I do think when you look at these places where there are no legal protections, making the case from a conservative values perspective is an imperative, not an option, so I hope to be helpful from that perspective. As we look to other states with ballot initiatives I hope there’s an opportunity to utilize technology like micro-targeting and big data to be more effective in targeting the people we still need to persuade on this.
One thing I was very proud of was helong to get 130 Republicans and conservatives to sign an Amicus brief saying that all Americans have a right to marry—a number of those people have since then gone to work to help this fight. Paul Wolfowitz, deputy secretary of defense under George W. Bush, wrote an op-ed for the Houston Chronicle. Others went on television.
What role do you think the media has played in this?
An important role, for sure, but the single most important role is the role of every one of your readers and the role that Harvey Milk outlined—the role everyone has in simply coming out and telling their story to their family and their friends and their colleagues. There are so many examples, every day. What was so compelling about these cases was Edie’s story and Edie’s example.
We all have the power to tell stories, and the media can magnify that. It’s also important for kids who are growing up—who want to grow up in a nation where they have equal rights under the law. I do think we need to recognize that this is a pluralistic society, and what we are discussing is civil marriage, and that while a marriage license ought to be available to everyone regardless of sexual orientation, we also respect the fact that different faiths come to different conclusions—and we’re not talking about taking a sacrament here.
You mentioned that in 29 states you can still be fired from your work based on sexual orientation. That’s a pretty powerful disincentive for coming out, let alone getting married.
73% of Republican voters believe someone should not be able to fired based on sexual orientation, so if a majority of Americans who believe there ought to be civil marriage—it’s about 55% now—that number is a super majority on workplace discrimination. I think there is a good conservative argument, a good progressive argument that’s consistent with the most basic American value, which is merit: People ought to be judged on the job that they do. Building out the kind of coalition that we saw around marriage, where business leaders made the case, as well as conservatives and liberals and moderates and libertarians, all can make the case of why people ought to be judged at work on the job that they do and not fired on the basis of sexual orientation.
There’s obviously a lot of clean-up that will happen now that DOMA has been repealed, from tax equity issues to immigration, and those are things that need to be reviewed. There’s been a lot of progress in the past on safe schools and making sure that bullying is addressed. Governor Christie in New Jersey, and in Maine, Governor LePage, have signed very robust laws making sure that every child is safe in school. Those can be a model for other states.
Speaking of Christie, were you disappointed in his reaction to Justice Kennedy’s opinion, calling it “incredibly insulting” to the 340-plus members of Congress and President Bill Clinton who signed it into law?
I disagreed with him. I thought it was the right decision and I think we need to try now, going forward, to look at places where we don’t have access to marriage and work on that. Everyone comes from a different ideological perspective, and we should use our way of thinking and our particular relationships to make the case for equality.