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Conservative Leader Prepares For A Long War Over Marriage

Marriage is on the ballot in four states Tuesday, but that's just the beginning. "This is never over," says Brian Brown.

Posted on November 4, 2012, at 2:38 a.m. ET

Charlie Neibergall / AP

Brian Brown, executive director of the National Organization for Marriage, speaks in March in Iowa.

Mitt Romney has spent virtually no time this year talking about his opposition to same-sex couples' marriage rights, which face key tests in four state ballot measures Tuesday. But the leader of the national fight to, as he would put it, protect traditional marriage said he sees Romney's election as an important part of that fight — and Romney as a steadfast ally in that cause.

"Mitt Romney supports marriage as the union of a man and a woman," the president of the National Organization for Marriage, Brian Brown, told BuzzFeed Friday. Brown recalled the aftermath of the Massachusetts Supreme Court's 2004 ruling to include gays and lesbians in civil marriage. "He was very strong, he spoke at rallies, he was strong the whole way through."

Now Brown heads into Election Day with as much at stake as any conservative besides, perhaps, Romney himself. Brown heads the nation’s largest organization that seeks to stand, as many on both sides of the political spectrum see it, in the way of history, yelling, "Stop."

President Obama came out for — as Brown’s adversaries frame it — marriage equality in May. Several Republican-appointed judges in courts across the nation, including two federal appeals courts, have struck down the Defense of Marriage Act as unconstitutional. The Republican presidential ticket, though in agreement with Brown's group, has mostly been quiet on marriage issues during the fall campaign.

Then, there are the four states. Voters in Washington and Maryland will decide in a referendum vote whether to accept the states’ marriage equality bills passed and signed into law earlier this year, voters in Maine will cast their ballot on an initiative to allow same-sex couples to wed there, and Minnesotans will vote on whether the state’s constitution should be amended to prohibit same-sex couples from marrying.

Although the polling is looking good for supporters of marriage equality, all four states are too close for either side to claim victory until they know for certain. With a string of wins, most recently this May when a constitutional amendment passed overwhelmingly in North Carolina, Brown has reason for confidence. And, Brown doesn’t buy the polling anyway.

“If the country supports same-sex marriage, and you’ve got the red states and the blue states evening each other out, and we’re still winning in the deep blue states, there’s something wrong with the polling saying that we nationally support same-sex marriage,” he said. “It’s just statistically impossible.”

On Tuesday, Brown’s theory and his organization, which is fiercely secretive —battling disclosure to lawsuits in multiple states — about its donors, will be put to the test.

What if he’s right?

BuzzFeed posed the question to him on Friday, asking what he would say on Wednesday if his cause succeeded in all four states.

“This makes clear that the people of this country know that marriage is the union of a man and a woman, and all of this talk about somehow the country turning is absolutely false, and that protecting marriage is a winning issue,” he answered, quickly adding, “If we lose one, that would still be the same.”

Then, Brown went a step further, suggesting a level of doubt that is uncharacteristic for the unflappable leader of a cause quickly losing favor among elites of both parties.

“It becomes harder if it’s two, three or four, but I don’t think that’s going to happen," he said.

His answer — and the early hedging — suggest that Brown is aware that the ground on which he is fighting is widely seen as shifting beneath his feet.

So, what if the opposite happens? If, on Wednesday, Maine, Maryland and Washington have approved marriage equality and Minnesota has rejected an amendment?

“It will be a bad day,” he said, adding, “but we live to fight on. We fight, day in and day out. We’ve been down before, we’ve come back. It’s not going to change anything as far as our commitment to the battle.

"We should be considered the underdog in all four of these states," he continued. "These are states that, on paper, are very difficult for us." And, then there’s the money. "If we were to lose these, it really comes down to money. We have to be able to get our message out. Our message, we’ve shown, wins in state after state. But in these states, we’re just being grossly outspent."

So, Tuesday matters, though neither side will say how much until after they have the returns in hand. And, quickly thereafter, Brown and his adversaries will be turning their attention to the Supreme Court, where parties have asked the court to hear appeals of challenges to DOMA and the 2008 California marriage amendment, Proposition 8.

The Road Ahead

Brian Snyder / Reuters

Republican presidential nominee Mitt Romney — shown here in Colorado Springs, Colorado, with his wife Ann — opposes same-sex couples' marriage rights and has backed a federal constitutional amendment to bar states from allowing their recognition.

Brown is eager to make his case beyond the conservative press, and he spent much of his Friday, four days before Election Day, talking about his group's plans with national media outlets, including reporters at BuzzFeed and The New York Times covering the pending Supreme Court cases. More than two-and-a-half years since he took over the head of the organization from the group's first president, the higher-profile Maggie Gallagher, Brown is facing several of the biggest tests that his cause has faced since 11 states voted on marriage amendments in the 2004 election.

For nearly an hour, Brown, in a suit but not tie and flanked by two communications assistants, talked with BuzzFeed in his office about the ballot fights, the Supreme Court, the path ahead, and what his plan is for that marriage pledge that several Republican presidential candidates — including Mitt Romney — signed during the primaries.

Among Brown’s main points:

• On what a Supreme Court ruling striking down Proposition 8 in Perry v. Hollingsworth would mean: "There will be a Federal Marriage Amendment fight if the court does take the Perry case and then rules against us."

• NOM has reversing marriage equality in Iowa still squarely in its sights: "We’re going into Iowa, we’re gonna get a vote, and we’re gonna win the vote."

• He is dismissive of the gay group, Log Cabin Republicans: "I’m sorry, but I don’t take them that seriously."

• Finally, he really does want a vote on marriage in Washington, D.C.: "Congress can tell D.C., ‘You have to allow a vote on this issue.’"

On the weekend before the election, though, NOM is placing thousands of calls in an attempt to turn out voters in the four ballot measure states and three presidential swing states based on voters’ support for traditional marriage.

“We’re doing about a half-million dollars of voter-outreach calls to our supporters,” Brown said. “We’ll reach 10 million people across the country this weekend. It’s the biggest thing we’ve ever done on voter contact in a national election. We’ve got Dr. [James] Dobson [who founded Focus on the Family], we’ve got [Florida Sen.] Marco Rubio doing Hispanic calls, we’ve got Mike Huckabee, so I’m excited about it.”

Besides the ballot measures, Obama’s moves on marriage — and the party along with him — have put the presidential race front and center for NOM.

"The presidential is huge for us. Obama has laid his cards on the table: He supports same-sex marriage, the Democratic Party has."

And, despite Log Cabin Republicans having dismissed Romney’s support for the proposed Federal Marriage Amendment as "an empty promise made to a vocal but shrinking constituency," Brown sees it differently.

"They’re trying to do what they can to subvert the party," he said of LCR, "and clearly a part of the party is the party platform and the party platform is very strong. They don’t like that, and they’re trying to push Republicans to abandon their principles." Of the candidate supported by both NOM and LCR, Brown strongly defended Romney’s bona fides on marriage.

"I was in Connecticut during the 2004 Massachusetts fight," Brown, who was running the Family Institute of Connecticut at the time, said of the implementation of the Massachusetts Supreme Judicial Court ruling requiring marriage equality and the subsequent fight to push for a constitutional amendment dictating otherwise. "[Romney] was very strong, he spoke at rallies, he was strong the whole way through. Were there some people that were disappointed that he didn’t just, by fiat, say, ‘We’re not going to obey the judges!’? There are always people that do that, but in the real world, Romney went above and beyond.

"He’s always been a strong supporter of protecting marriage, and he was an early signer of the Marriage Pledge. We obviously believe that he will follow through in his commitment; I don’t see why anyone would say otherwise."

Of the other portions of the pledge, which include support for DOMA and religious liberty measures, Brown said, "We’re working on some model legislation that deals with religious liberty." Following Tuesday, he said, "we’ll be trying to work with sponsors, co-sponsors, get people on board with that."

Fighting the "Bigot" Label

Jim Mone / AP

Louise Pardee calls fellow senior citizens from a Shoreview, Minn, phone bank to urge them to vote against a proposed constitutional ban on marriage for same-sex couples.

A part of the pledge is to get a vote on marriage in Washington, D.C. In the nation's capital city, protections under the city’s Human Rights Act are not subject to referendum or initiative, and the marriage equality measure was determined to fall under those protections. Brown called the move “particularly egregious.”

Indeed, a major element of NOM's agenda is to defend religious conservatives from the charge that they are "bigots" and, consequently, to resist any comparison to the civil rights movement for African-Americans, which backers of marriage equality see as having some similarities to their cause.

"I don’t believe people should be able to vote on things that are actual discrimination," Brown said. "I don’t believe that we should have a vote on whether African-Americans can eat in restaurants. That is true discrimination, and obviously we would never do anything to say that that should be voted on.”

Asked if he had the same view opposing a vote on whether gay people could eat in restaurants, "Yeah, of course." But, quickly pivoting back to his group's sole target, marriage, he said, "It’s comparing apples and oranges. Opposing gay marriage is not discrimination."

That debate is going on right now across the country, but particularly in the four ballot measure states. Although Brown maintains that his side “can win all four” and said, "I don’t know how I would grade them," he then laid out a grading that appeared close to writing off the Maine race.

Although marriage equality supporters would differ about the polling, Brown said, "The polling has been pretty similar in most of them, other than maybe Maine. Maine’s been tough. Maine’s gonna be tough. It’s right next to Massachusetts, we’ve already fought this out there, and they’ve been able to raise a lot of money in Maine."

Pointing to one positive poll out of Washington, Brown said of the referendum there, "I think we’ll win."

Confidence picking up, he moved to Minnesota, saying of his view on disparities between the polling and Election Day outcomes in marriage measures, "If you add 6 points to the public polling, that gets us where we need to be and that’s generally the best way to figure this stuff out is to add 6 points to any of the public polling."

Finally, Maryland, where polls are close and about which Brown appeared to have the most confidence.

"In Maryland, you also had President Obama coming out for same-sex marriage and you had, what I viewed as, pretty poorly worded polls of the African-American community that tried to make it look like somehow the African-American community, because of President Obama, had sort of abandoned their religious views that marriage is the union of a man and a woman," he said, referencing a now-established effort by NOM to exploit the perceived differing views between LGBT and black people on marriage. "I didn’t buy that at the time, I don’t buy it now, and I think that the polling is bearing that out. I mean, the polling, I don’t know what it is, 53 percent opposition now in the African-American community, but, again, you have to add 6 to that. That starts to get to really large numbers. It’s still an overwhelming majority, and that’s why I’m confident that we’re going to win."

And, even if they lose one or more states on Tuesday, Brown said, "There’s no reason we can’t go back. This is never over. We’re not giving up any ground. Ever."

To illustrate his point, he said, "We’re going into Iowa. Why are we spending all these resources in Iowa. We’ve never hidden it. We want to defeat the judges, and we want to have a constitutional amendment. And, guess what? Mike Gronstal is about to lose. He’s not going to be Senate leader. And we’re going to get a vote in Iowa. And the whole notion that we’re somehow in a containment mode will be done. We’re going into Iowa, we’re gonna get a vote, and we’re gonna win the vote. And, people can say that this isn’t gonna happen, but it is."

To punctuate the point, he said, "There is no inevitability in any of this. It’s just hard-fought state battles."

Next: The Supreme Court

Alex Brandon, File / AP

Brown's battles also likely will play out this year and next in the Supreme Court, which is slated to decide on Nov. 20 whether it will take any of several cases challenging the federal definition of marriage contained in DOMA, as well as California’s Proposition 8.

"I’m supremely confident they’re going to take both cases, and we’re going to win," Brown said. "I really am increasingly — the more that things proceed, the more I don’t think that Kennedy is going [to vote to strike down either law]."

Brown’s confidence about the DOMA cases comes despite rulings striking down the law by four federal trial courts and two appellate courts. But, Brown said, "The arguments have all revolved around this false notion of history that the federal government has not been involved in marriage. It’s patently false. In 1888, Utah could not become a state [without prohibiting bigamy and polygamy] — the Utah Enabling Act." The lawyer for the House Republicans, Paul Clement, had made that argument in the Second Circuit Court of Appeals in September, but it was rejected in an opinion handed down just threee weeks later.

Although they might disagree on the likely outcome, most advocates agree that the court will take the DOMA challenge.

Views are more mixed, however, on the Proposition 8 case. Brown has no such doubts, saying of the Ninth Circuit Court of Appeals ruling that struck down Proposition 8 on narrower grounds than the trial-court judge had done, "There’s no way the [Supreme] Court’s just going to say, on an issue of this significance, to allow some rogue circuit to have its own view on this."

Brown also demonstrated a canny understanding of the internal politics of LGBT activists.

"It’s just wishful thinking to think that the court won’t take the case," he said. "They know that they made a mistake, many, by accepting this ‘Dream Team’ [of Ted Olson and David Boies] to come in and co-opt a well-thought-out strategy that [Gay & Lesbian Advocates & Defenders] and others had. Initially, the other side, the smart folks, were mad. Then, they accepted it. You now have a major high-risk, potential-high-reward scenario that you never had to confront."

If that happens and if Olson and Boies win at the Supreme Court, Brown said he is ready.

"There will be a Federal Marriage Amendment fight if the court does take the Perry case and then rules against us. Even on narrow grounds, I think we would have to do something like that," he said. "Ultimately, the federal government is involved in marriage, should be involved in marriage, and we do need a federal definition of marriage."

Votes on the proposed Federal Marriage Amendment did not secure the necessary two-thirds support in Congress in 2004 or 2006, and most advocates on both sides think it would be even more difficult to move the proposal forward now.

That’s part of the "opportunity," Brown said, while acknowledging it would be an uphill one.

“It’s tough. We have to analyze all of this. We’d have to look at the situation, but there’s a real chance the Republicans can have some big gains in the Senate. There are a number of constitutional amendments that come out of court decisions. This has happened before. It isn’t as though those constitutional amendments instantly had the requisite senators. This will become a part of future Senate elections. It’ll be a long-term fight. It may take six years. It may take four. Unless there’s a dramatic change in the Senate, it may not be immediate," Brown said.

Of the prospect of that long-term fight, Brown appeared ready, if not eager.

"We can get to a critical mass on this. The court overstepping its bounds created outrage in Iowa," he said of the successful effort to oust three of the justices in a retention election. "We did the unprecedented and historic there. We can do it on this. It will be a big task, but we will not have a lot of options, we’ll have to do it. It’ll be a big opportunity."

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.