After the Gascon Case

Yesterday, a panel from the 9th Circuit court of appeals ruled against the plaintiffs in a civil suit filed by the Erotic Service Providers Legal, Education, and Research Project, calling for the decriminalization of full-service sex work on Constitutional grounds.

I am, of course disappointed – but neither surprised nor discouraged.

Judges are just as much mindful of public opinion as legislators and other politicians, hence unwilling to make dramatic changes in law without sufficient public support. Nor is one adverse ruling the end of the road towards reform. Both of these lessons are clearly demonstrated in the efforts for marriage equality.

The first lawsuit to allow same-gender couples the right to legally wed (Baker v. Nelson) was in 1971; it was rejected by the Minnesota high court, and the U.S. Supreme Court declined to hear it. That did not end the effort to get such relationships recognized, even when leading LGBTQ rights activists considered it a distraction from what they considered more basic nondiscrimination rights. For many same-gender couples and their family members, however, the obstacles that came with lack of equal recognition had very real consequences. Thus, while mainstream organizations worked for “domestic partnership” ordinances at local and state levels, a few brave people continued to press for full marriage rights.

Evan Wolfson best outlined the strategy for achieving marriage equality, based on his research of previous civil rights efforts. He put forward that the fight would be accomplished on multiple fronts – judicial and legislative, from local to state and Federal – and most importantly would depend upon shaping public opinion through careful and continual education and messaging.

That was the strategy we followed in Massachusetts. We built a broad coalition, starting with the LGBTQ community and their allies like P-FLAG, expanding into the progressive religious community and other constituent groups. We talked to whomever would listen: student organizations, churches and synagogues, professional associations, political candidates and their operatives. Our goal was to expand our base by persuading members of the “mushy middle” to our side.

We did this by keeping our message simple, appealing on many levels, and showing that marriage equality harmed no one while giving same-gender couples and their families the tools they needed to assure their well-being. We also heeded the advice of legal experts not to rush into a lawsuit until our efforts at educating and organizing had borne sufficient fruit at the grassroots. In our first meeting, the more seasoned activists were convinced it would take some five or ten years before that foundation had been laid. They were just about right.

The Gascon case is analogous to the Baker case – an early effort to achieve rights which will be seen as “ahead of its time” once those rights are considered settled law. To repeat the successes of the marriage equality movement, sex workers and their allies in the United States should look at how to apply their organizing and messaging strategies towards reshaping public consensus in favor of full decriminalization.

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