The Yes Side's Media Fall Back Guy

We've been hearing from reporters, editors, and event organizers that Julaine and Company are turning down media and debate opportunities. As a result, others have stood up to take their place. Most prominent among them is Rick Esenberg, who will be debating the ban in a mock trial on Wisconsin Public Television on October 25th.

He's an attorney in Milwaukee, occasionally teaches at Marquette Law School, and has a blog called Shark and Shepherd.

At first, he seems like an odd choice for a spokesman: back in October he wrote about the second sentence, "I have to admit that I don't much like it." (How many people back an amendment to the constitution when they only like half of it? It strikes me as profoundly reckless.)

The picture becomes clearer when we note that Esenberg has begun working with the Alliance Defense Fund, which has been at the forefront in pushing bans across the country. He contributes to their blog, Constitutionally Correct.

Over the weekend, Esenberg strongly criticized the UW Board of Regents' decision to formally oppose the ban because it threatens to prevent the UW System from ever extending equal benefits to gay employees and their families.

In it, he makes a somewhat surprising argument that Wisconsin's ban won't touch partner benefits:
As to the merits, the idea that the amendment would prohibit the university from extending benefits to an employee's designated domestic partner seems to be weak. It is inconsistent with the amendment's language (giving someone health insurance does not create or recognize a status substantially similar to marriage) and is contrary to the expressed intent of the amendment's author. I know that some people take the opposing view, but it strikes me as a stretch.
Not just "some people." Your colleagues, Rick.

ADF's m.o. is to go around the country chipping away at what meager gains gay families have made. Their attorneys have helped draft amendments across the country, and may very well have had a hand in drafting ours. Banning domestic partner benefits isn't peripheral to what they do: it's part of their core mission.

To sample just a few cases:

They sued (and lost) to overturn domestic partner benefits offered by the Madison School District. (There was no constitutional ban on civil unions to bolster their claims.)

After voters in Cleveland Heights, Ohio, voted to provide gay and non-gay city employees with equal benefits policies, ADF (you guessed it) sued (Plain Dealer Reporter, 2/24/04). (So much for letting the voters decide.)

They used Utah's ban to sue Salt Lake City over its domestic partner benefits.

And now they're suing Miami University, saying that Ohio's amendment renders that institution's domestic partner benefits unconstitutional. According to their press release: "Miami University's creation of 'domestic partnerships' is quite clearly in violation of the state constitution."

In addition, they've sued to take away gay families' health care in Minneapolis, Chicago, New Orleans, San Jose, and Thurston County (WA).

Moreover, they emphatically interpret these bans to deny even the slightest recognition of gay families, for whatever purpose. To ADF, giving someone health insurance absolutely does create or recognize a status substantially similar to marriage.

Michael Johnson, one of Esenberg's ADF colleagues, put their position quite clearly when talking about the impact of Louisiana's new amendment on an ongoing ADF challenge to New Orlean's domestic partner policy: "I think and would argue that a domestic partnership is, quote-unquote, substantially similar to marriage" (AP, 9/22/04).

David Langdon and Joshua Bolinger, two of Esenberg's ADF colleagues, just submitted a brief asking Ohio's Supreme Court to use that state's ban to overturn domestic violence protections for all unmarried couples. In it, they directly counter Esenberg's pre-election interpretation of the Wisconsin ban: "The focus of the second sentence of the Marriage Amendment is not on the benefits or obligations assigned to those in the relationship which is given a legal status--it is on the status itself"; and it "proscribes the very legal recognition of the relationships in the first place, for any purpose" (emphases theirs).

(Langdon helped write the Ohio amendment and is also involved in the challenge to Miami University's domestic partner policy.)

Esenberg works with an organization passionately opposed to providing gay families with any measure of fair treatment. So when he says that the Wisconsin ban wouldn't touch gay families' health care--when he offers an interpretation counter to the one put forth by ADF attorneys across the country--count me as deeply skeptical.

If our ban passes, is Esenberg saying that ADF won't sue here? Or that he won't take part in such a suit? Somehow, I doubt it.


At 4:14 PM, Anonymous Kory said...

Nice write-up Josh!

At 6:11 PM, Anonymous Anonymous said...

Josh-1, People from ADF-0.

Yay Fair Wisconsin!

At 9:41 AM, Anonymous Anonymous said...

I and my law partner Lester Pines, along with attorneys for the Madison Metro. School District, defended against the challenge to the DP benefits you write about. The challengers and their ADF-funded lawyers made an argument that the DP benefits were illegal because Wisconsin's public policy was to protect only marriage, to the exclusion of all other relationships, and thus a governmental entity providing a benefit based on a marriage-like relationship violated public policy. They lost that argument--but if the ban passes, I guarantee you we'll see that argument again.

Tamara Packard

At 10:26 AM, Anonymous Keith said...

Now you're blogging, Josh! It has been too long since we've read meaty stuff on this website.

My worry here is that the voters are not getting this message. Every time a poll is released, we do worse and worse, like we're digging a deeper hole.

Most frightening, my conversations with "YES" voters have changed. It used to be that they would "rethink" once they found out about the far-reaching consequences you describe.

But lately, I have had people look me in the eye and say, "You should pick up and move to Canada. Why should my money pay for your family's health insurance and pensions?"

So perhaps people ARE getting the message, and since their rational argument of "preserving marriage" is fallen apart, they have reverted to ad hominem?

Perhaps the reason that YES is polling so favorably is because people are finally willing to admit (to themselves and to pollsters) that they are homophobic, whereas before they felt more shy?

What are your thoughts, Josh?

At 10:45 AM, Blogger Joshua Freker said...

Keith - Thanks for your comments.

There are some people we will never move to a no vote in this timeframe, but I think we have plenty of reason to believe there are people who are moving. And there are enough of them to get a majority no vote on November 7th.

Have you gone canvassing with Fair Wisconsin yet? The canvasses are targeted at the voters we know are most likely to move. Every week, our volunteers come back with story after story of voters who have moved in our direction once they have more information.

It's never been a campaign that can use just one argument. Overall, we have every reason to believe we have moved voters in our direction. According to some early polling in 2004 on the amendment, we have arguably gained about 20%. We continue to narrow that gap every day.

Our two years of organizing is paying off. If you spend time volunteering in any of our offices, you can't help but notice that we are catching fire right now. There is a degree of intensity among opponents of the ban that will drive turnout on our side--something the polls don't necessarily reflect.

At 10:51 AM, Anonymous Leslie Shear said...

Mr. Esenberg certainly is riding circuit--he and Attorney Michael Dean will be presenting the "pro-amendment" position on a panel debating the ban on October 12, 2006, at 7 p.m. at the UW LAW SCHOOL (Room TBA). The anti-amendment position will be represented by Attorneys Lester Pines, Susan Collins and Leslie Shear. On Friday, October 13, Esenberg will be on WPT Here and Now, and Attorney Michele LaVigne will be speaking in opposition. Michele is the attorney who presented the case against the amendment in the WPT Mock trial that will be aired for the 1st time on 10/25 (it will also have subsequent showings).
If you can, please attend the debate at the law school this Thursday!

At 10:54 AM, Anonymous Keith said...

One more thought about what has made the YES message change, and it's not a pretty one.

When the Foley scandal first broke, I thought that it would help us. People would see that gay folks have choices: either live responsibly in families, or live recklessly. By making it difficult to live responsibly, the amendment would encourage recklessness.

But in reading the media and talking to folks, it seems that the effect has been the opposite. People are seeing Foley's recklessness as TYPICAL of gay people. By some perverse logic, gay marriage leads to more acceptance of gay people, and acceptance of gay people leads to child abuse.

And the bad poll results? Are the pre-Foley or post-Foley?

At 4:39 PM, Blogger Paul said...

Wow, this piece really sheds light onto their true motivations. It's not just to "protect marriage", but to turn back all gay rights.


At 2:18 PM, Anonymous Jennifer said...

I am a 56 year old married mother of 3 living on Lake Superior. I was raised in central Wisconsin on a farm, Missouri Synod Lutheran, and Republican. And I will vote NO on the ban. Thought you could use some encouragement!


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