So Goes the Gay Nation 

Same-sex-marriage activists set their sights on California

Thursday, May 20 2004

After a decade of legal fights and painful setbacks, the lesbian, gay, bisexual, transgender (LGBT) political movement won something few thought could be accomplished so soon — legal marriage for same-sex couples. True, it was in Massachusetts, the bluest of the blue states, but hundreds of Massachusetts same-sex couples have already tied the knot, capping the end of the legal struggle with lovely ceremonies. Marriage-equality advocates are ramping up the fight to wed in other states, California in particular.

Molly McKay, the associate executive director of the LGBT advocacy group Equality California, was one of many out-of-state visitors who came to Massachusetts to watch the first legal same-sex marriages unfold. “I don’t know if it’s just a New England kind of cultural difference, but things seem a little more subdued than they were in California. But there is support in the non-gay community that is overwhelming,” she said Monday afternoon outside Boston’s City Hall, where she had just seen hundreds of couples married. “Last night when we went to Cambridge, there had to have been at least a thousand people out front, and 50 percent of those were non-gay.”

Of course, same-sex couples and their supporters in Massachusetts can afford to be more relaxed about their marriages. Unlike the beat-the-clock mentality of San Francisco in February, where the specter of an impending judicial halt to Mayor Gavin Newsom’s maverick decision hung over the entire proceedings, Massachusetts couples know they have until at least November 2006, when the issue may come in front of voters in the form of a state constitutional amendment that would ban same-sex marriages. But McKay noted that Newsom’s decision, which spurred local officials from Oregon to New Paltz to issue marriage licenses to their queer brethren, played an unanticipated role in helping marriage-equality advocates in the Bay State.

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“It took a lot of the heat off of Massachusetts because people were saying, ‘Four activist judges are behind this fundamental change in the structure in society,’” she explained. “And then you had a straight, married, Catholic mayor making the decision and implementing marriage licenses. They saw the sky didn’t fall, and they saw that things were very orderly, and they said it actually kind of helped relieve some of the steam here in Massachusetts, which allowed them to say, ‘Look, there are already same-sex couples being legally married. Now we want to do it the right way, we want to do it statewide.’”

Newsom’s move helped reinvigorate the same-sex-marriage drive in California, which had been somewhat derailed thanks to 2000’s infamous Proposition 22, the voter-approved Defense of Marriage Act (DOMA) banning California’s recognition of out-of-state, same-sex marriages. But LGBT-rights groups have been very busy here for years working with sympathetic legislatures (not to mention the state’s gay and lesbian legislative caucus) to pass a host of laws that makes California arguably the most queer-friendly state in the nation. The state’s domestic-partnership registry, which artfully skirts around Proposition 22, has already created a state of virtual marriage for any same-sex couple that chooses to register with the Office of the Secretary of State. Of course, marriage-equality advocates note no domestic-partnership program can secure the thousands of federal benefits and responsibilities offered to married couples. Which is why McKay’s colleague Geoffrey Kors says marriage for California’s same-sex couples is still the goal, not only for the tens of thousands of couples here but also as an important step in the national marriage-equality movement. “California is the only state that has passed comprehensive rights for same-sex couples through the legislative process and not through judges,” he explained. “While it’s important that it happens through both, it is evidence that this can happen through other means than President Bush’s so-called activist judges, most of whom have been appointed by people from his own party.”

Openly gay San Francisco Assemblyman Mark Leno has introduced AB 1967, the Marriage License Non-Discrimination Act, an Equality California–endorsed bill that “will prevent county clerks and other government officials from discriminating against same-sex couples in the issuance of marriage licenses in the state of California.” For a first-year bill, AB 1967 is doing fairly well, working its way through the Assembly Appropriations Committee, and picking up endorsements from four of the eight statewide elected officials. Attorney General Bill Lockyer and Governor Schwarzenegger are two of the notable holdouts, but even Arnold’s kind words for same-sex marriage on Jay Leno a few months back gives marriage-equality folks hope that if it did make it to his desk, he’d sign it. But Kors said the net effect of marriages in Massachusetts helps spark other kinds of changes. “It not only will impact the marriage-equality bill, but it makes, I think, other bills very difficult for the Legislature or the governor not to support,” Kors said, referring to pending bills that would strengthen current hate-crimes statutes and same-sex partner insurance coverage.

The most incendiary effect Massachusetts will have is when couples from the Bay State move to California and petition for marriage rights, or California couples head back east to get hitched and return waving their apparently valid license for all to see. Massachusetts Governor Mitt Romney, a same-sex-marriage opponent, has tried to dust off a nearly 100-year-old state law that prevents couples from outside Massachusetts from getting married there if their home state does not recognize the union, but the fact that the law was designed to prevent interracial couples from tying the knot makes the move not only unseemly but primed for courtroom brawls. Legal challenges across the country are sure to abound. Attorneys general in states without DOMAs are trying to figure out what exactly a Massachusetts same-sex-marriage license means for them, while the 38 states with DOMAs are bracing for inevitable court challenges. This also explains why so many states are falling over themselves to put same-sex-marriage bans in their constitutions in the hopes of short-circuiting the discussion once and for all.

One who is not afraid of multiple legal and political fights is Evan Wolfson, director of the Freedom To Marry, one of the nation’s leading marriage-equality advocacy groups. “The couples who are legally married in Massachusetts are as married as any people on the planet, but for a period of time they will encounter a mix of respect, discrimination and uncertainty as they deal with businesses, states and the people around them,” he said. “And it’s going to sort itself out over time.”


In California, things may begin to sort themselves through the natural passing of the generations. The death of state Senator Pete Knight, the author of Proposition 22 and one of the most vocal critics of Newsom’s marriage moves, left the state’s traditional-marriage camp without a leader. Knight (whose estranged son came back to California in March to marry his partner in San Francisco) had met with Equality California just weeks before his death and, according to Kors, wanted to see if he could broker a deal to expand civil unions in return for stopping the same-sex-marriage steamroller. Knight’s staff has disputed Kors’ claims, but the fact that he would even talk to the group is significant. “I think there was a little bit more of an attempt to put out a reasonableness from Knight, which came probably from his schooling in politics, that doesn’t exist with the people leading the movement in California,” Kors said of his opponents. “On the other side there is no compromise for the people who are leading it now.”

The same day that same-sex couples got the right to marry in Massachusetts was also the 50th anniversary of the Supreme Court’s unanimous decision in Brown v. Board of Education of Topeka, Kansas, which ended racial segregation in public schools. Nowhere did the historical irony play out more deliciously than on Air Force One, where President Bush’s press secretary read a brief statement that reaffirmed his boss’s support for the proposed Federal Marriage Amendment, which would change the U.S. Constitution to ban same-sex marriages. “The sacred institute of marriage should not be redefined by a few activist judges,” the statement said in response to all the happy Massachusetts couples, a fascinating argument to make considering the president was on his way to Topeka, Kansas, to give a rousing speech to commemorate Brown v. Board of Ed., perhaps the most winning example of judicial activism in American history. “On this day, in this place, we remember with gratitude the good souls who saw a great wrong, and stood their ground, and won their case,” Bush intoned later that afternoon at the Brown v. Board of Education Historic Site in an unusually eloquent speech. “And we celebrate a milestone in the history of our glorious nation.” Bush’s words eerily echoed McKay’s comments that same afternoon in Boston, where she was still on a high from watching two of the original plaintiffs in the Massachusetts Supreme Court case get married in front of hundreds of spectators. “This is the right cause,” McKay said. “This is the right time, and it gets me and, I hope, other people a little more impatient with California and the need to move forward now.”

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