MARRIAGE & DEATH

Why the fight to end the death penalty could look a lot like the fight for marriage equality

AP

When the Supreme Court announced its ruling last June that the Constitution guarantees the right to same-sex marriage, Diann Rust-Tierney was sitting in the front of the ornate courtroom in Washington D.C., waiting to hear the result of a death penalty case.

But when Justice Anthony Kennedy started reading the marriage opinion, Rust-Tierney couldn’t help but tear up. “People started sobbing,” she said. “We were all sobbing. Sitting in there, it was a blessing.”

Now, Rust-Tierney, the executive director of the National Coalition to Abolish the Death Penalty, is working to make sure she gets another tearjerker of a Supreme Court decision: a ruling declaring capital punishment unconstitutional.

As the death penalty faces its strongest headwinds in decades, anti-capital punishment activists who want to finish off the sentence for good are learning lessons from the success of the marriage equality movement.

Guaranteeing the right to marry someone of the same sex and banning capital punishment are two very different objectives, but both causes have a similar roadmap to victory: fight state-by-state for policy changes, shift public opinion, and ultimately win a nationwide case at the Court.

The same-sex marriage movement was perhaps the most rapid civil rights victory in American history. In 2002, same-sex couples couldn’t get married in any state. Just 13 years later, they can tie the knot in whichever state they want.

The movement against the death penalty has been slower. While the Supreme Court abolished the punishment in 1972, it was reinstated just four years later. Some activists see a recent turning point against capital punishment: fewer people will likely be executed in 2016 than any year since 1991. Polls show public support for the death penalty falling. And on Election Day, two states will vote in referendums abolishing it.

Evan Wolfson, a lawyer who founded the advocacy group Freedom to Marry and is considered one of the leaders of the marriage equality movement, said he sees real parallels between the two efforts. Since June 2015, he’s been advising other social movements around the country, including anti-death penalty campaigns.

He likes to tell activists that the Court victory didn’t come in a vacuum. “It’s not only having a legal argument, it’s building public support across the country,” he told me. “It was the win in the court of public opinion that enabled our win in the Supreme Court.”

I spoke with Wolfson and other activists, lawyers, and academics who study gay rights and the death penalty about how the death penalty abolition movement could accomplish its goals. In many ways, anti-death penalty activists are already following the marriage equality playbook and finding success. Here are some big takeaways:

A 50-state strategy that ends at SCOTUS

The Supreme Court can be misunderstood as an ivory tower disconnected from the rest of the country, making rulings based only on the text of the Constitution. In fact, in same-sex marriage and death penalty cases, the nine justices have paid close attention to public opinion and changing policies in the states.

After the Stonewall protests in 1969, several gay couples filed lawsuits arguing that they deserved the right to marry. Their cases were unceremoniously rejected. So activists began a long fight for changes at the state and local level. Gradually, they won the right for domestic partner benefits and marriage. Starting in Massachusetts in 2003, states began to legalize gay marriage, either as the result of court decisions, legislative action, or, eventually, referendums.

At the same time they were fighting state-by-state—lobbying legislatures, endorsing candidates in elections, and filing state lawsuits—activists were thinking about the bigger picture, Wolfson said, winning support in media and popular culture. A milestone came in 2013, when the Supreme Court struck down the Defense of Marriage Act.

By the time the Court considered Obergefell v. Hodges in 2015, a solid majority of Americans supported same-sex marriage and it was legal in most states. In his opinion, Justice Kennedy tracked the state by state reforms. “There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings,” he wrote. “This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.”

Notably, advocates in 2015 used some of the same legal arguments that gay couples made when they were turned away by courts in the ‘70s. Back then, “the country and the courts and the conversation were just not ready,” Wolfson said. “What was needed was four decades of conversation, political and legal advances, changing people’s hearts and minds.”

Anti-death epanlty protesters in Los Angeles.Getty Images

Anti-death penalty protesters in Los Angeles.

Now, anti-death penalty activists are following in their footsteps of state-by-state action. Already, 19 states have abolished the death penalty. In addition, eleven more states haven’t executed anyone in more than a decade. Four states (Washington, Oregon, Colorado, and Pennsylvania) have current governor-imposed moratoriums on the death penalty.

Progress has ramped up recently: Last year, Nebraska’s legislature voted to abolish the death penalty, a decision that is being put to voters in a referendum on Election Day, when Californians will also vote in a similar referendum. In the last few months, the Delaware and Florida State Supreme Courts have ruled their states’ death penalties unconstitutional. Recent research has shown that most death sentences today come from about 2% of the counties in the U.S.

Just like in the same-sex marriage case, the Supreme Court is paying close attention to these trends. The two issues are based on different legal standards: gay marriage was guaranteed thanks to the Fourteenth Amendment’s Equal Protection and Due Process clauses, while activists say the death penalty violates the Eighth Amendment ban on cruel and unusual punishment.

The Eighth Amendment has a doctrine that is explicitly evolutionary. If a court finds that a punishment violates “the evolving standards of decency”—essentially, what American society considers acceptable—they find it unconstitutional.

In a series of cases in the last 15 years, the Supreme Court has done just that, chipping away at the list of people eligible for the death penalty. In 2002, they declared executions of intellectually disabled people unconstitutional. In 2005, they did the same for people under age 18. In 2008, they severely limited the ability of states to execute people for crimes that didn’t result in homicides. And in 2014, they essentially expanded the definition of who is considered intellectually disabled for the purposes of capital punishment.

Justice Kennedy wrote the last three of those opinions, and in each he looked at how other states had made the same changes. Both in the death penalty cases and the marriage case, “there’s a consistent strand through those opinions that recognize the core value of human dignity and that our constitution was written to protect human dignity,” said Natasha Minsker, the director of the ACLU of California’s Sacramento office, who’s worked for years to end the death penalty. Kennedy and his emerging line of legal reasoning could be the legal framework to end the penalty altogether, she said.

“My view is that the Supreme Court will be the last step,” Rust-Tierney said.

Anthony KennedyGetty Images

Anthony Kennedy

Use personal stories and messengers

So if changing public opinion was key in their ultimate Supreme Court victory, how did same-sex marriage activists do it? Some of the most successful messaging from the marriage equality campaign focused on the personal stories of gay and lesbian people and their families.

It was important “to make a personal connection rather than just explain the legal benefits,” Wolfson said. The most effective campaign ads or canvassing scripts focused on “telling the real stories of gay people and non-gay people who love them,” he said, emphasizing “shared values of love, commitment, treating others like you’d want to be treated.”

The anti-death penalty movement has already been doing a version of this by focusing on exonerees. There have been 156 people exonerated from death row since 1976, and those exonerees have been speaking out against the death penalty around the country. They urge voters to think about the possibility that someone they loved might be sentenced to death for a crime they didn’t commit.

LOS ANGELES, CA - JULY 14:  Gary Tyler speaks on stage during the Yes on Prop 62 coalition announcement at Los Angeles Grand Park on July 14, 2016 in Los Angeles, California.  (Photo by Phillip Faraone/Getty Images for Yes on Prop 62)Getty Images

Gary Tyler, a death row exonoree from Louisiana, speaks at a campaign event supporting the end of the death penalty in California.

Wolfson also said a powerful argument for marriage was the “journey stories”—people who used to oppose gay marriage but had changed their mind over time. Death penalty activists, he suggested, could mobilize similar people.

In California, for example, the former prosecutor who wrote the state’s death penalty statute in 1978 has come out against it, explaining how he had changed his opinion. “We did not consider that horrific possibility” that an innocent person might be executed, he wrote in 2011.

Finally, just as important were people who weren’t gay but explained their support of gay marriage to their friends and family. Death penalty activists are now urging capital punishment opponents to do the same: “This is not just a battle of experts and lawyers,” Rust-Tierney said. “An individual has the power of changing the people around them and their thinking.”

Robert Dunham, the executive director of the Death Penalty Information Center, said he thought anti-death penalty activists could learn from how the marriage equality movement mobilized young people. In the years leading up to the 2015 decision, polls consistently showed that young people supported marriage equality at higher rates. Similarly, Generation Y is more likely to want to abolish the death penalty than older generations.

“If in fact what we’re seeing is generational, then it’s only a matter of time before the death penalty disappears,” Dunham said.

One issue for the anti-death penalty campaign is the resources to get their message out. Minsker estimated that there was about “100 times” as much funding for the same-sex marriage movement as the anti-death penalty movement.

There will be wins and losses

When the Massachusetts Supreme Judicial Court ruled in 2003 that same-sex couples had a right to marry, it was a huge victory for gay rights. But the next year, in response to the decision, voters in 13 states approved constitutional amendments defining marriage as between one woman and one man. By 2008, more than half of the states had passed similar amendments—a widespread gay marriage backlash.

Similarly, as the death penalty has been challenged more strongly over the past few years, capital punishment supporters have worked to protect it. On Election Day in Oklahoma, voters will decide on a constitutional amendment protecting the death penalty, and Californians will also vote on a separate referendum that would speed up capital punishment and lead to more executions.

Marriage equality activists say that losses should be taken in stride. Ballot initiatives in 31 states had gone against gay marriage without a single state referendum victory until 2012, when three same-sex marriage referendums passed.

A pro-gay rights protest in Sacramento, California.Getty Images

A pro-gay marriage protest in Sacramento, California.

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Are we getting close to the Supreme Court abolishing the death penalty? Already, we have two Supreme Court justices—Stephen Breyer and Ruth Bader Ginsburg—who have explicitly said that they believe the death penalty may be unconstitutional (in a case announced three days after the same-sex marriage case). Justices Sonia Sotomayor and Elena Kagan have also forcefully questioned the use of the death penalty in specific cases.

If Hillary Clinton can appoint a new justice, it’s possible that a liberal majority could hear death penalty cases starting next year. And even if Donald Trump replaces the late Antonin Scalia with another conservative, activists hope that Justice Kennedy could be persuaded to be the fifth vote against the death penalty.

One big legal difference between the death penalty and same-sex marriage is that there’s no shortage of cases coming to the Supreme Court about the death penalty.

While marriage activists worked to plan the perfect case—it ended up being Obergefell—dozens of death penalty cases work their way up to the Court every year, whether they’re reaching the justices right before a scheduled execution or during the normal appeals process. In any of these cases, the justices could decide to take a whack at the problems of the death penalty.

“The stars seem to be lining up in a way so that the court is going to have to grapple with it,” said Robert Smith, a researcher with Harvard Law School’s Fair Punishment Project. “It would be unfathomable 10 or 20 years ago that this issue would be so debatable—and yet, today, the demise of the death penalty feels inevitable.”